early 209west2689 (Law No. 9.30, 2010)

The thermal power plant equipment does not fall under the energy-saving facilities;

The disposition that excludes the tax credit for the amount of facility investment is legitimate, and the disposition does not violate the principle of retroactive taxation prohibition and the principle of good faith.

Article 25-2 of the Restriction of Special Taxation Act

Enforcement Decree of the Restriction of Special Taxation Act

2010Guhap45651 The revocation of the disposition of imposing corporate tax and the revocation of the request for rectification

○ Stock Company

○ Head of tax office

May 12, 201

June 16, 201

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disposition of imposition of KRW 6,379,132,450 of corporate tax for the business year 2003 dated March 11, 2009 against the plaintiff and the disposition of refusal against the plaintiff's request for reduction of corporate tax for the business year 2004 dated April 16, 2009 shall be revoked.

1. Details of the disposition;

(a) The completion, etc. of power plants;

(1) In 2003, the Plaintiff completed the first phase of the ○○ Power Plant (hereinafter referred to as the “○○ Power Plant”) and the second phase of the 2004 (see, e.g., around March 2004), respectively, and each phase of the above phase is installed with a layout boiler and steam turbine (the first-1 equipment of the case where the layout boiler and steam turbine installed in the first phase), and the layout boiler installed in the second phase and steam turbine are installed.

(2) The Plaintiff replaced and installed the excessive air cooling equipment and the air cooling equipment of △△ Power Plants (hereinafter referred to as “△△ Power Plants”) within the period from May 15, 2004 to June 13, 2004, and the excessive air cooling equipment and the air cooling equipment of △△ Power Plants within the period from November 11, 2004 to December 10, 2004, respectively (hereinafter referred to as “instant secondary equipment”).

B. First Disposition (related to corporate tax for the business year 2003) of this case

(1) On March 30, 2007, the Plaintiff filed a claim for rectification of corporate tax on the above facility investment amount with the Defendant on March 30, 2007, when the facility of this case fell under the energy-saving facilities stipulated in Article 25-2(1) of the Restriction of Special Taxation Act, Article 22-2(1)1 of the Enforcement Decree of the same Act, and attached Table 8-3 of the Enforcement Rule of the same Act. The Defendant notified the Plaintiff that corporate tax would be refunded KRW 5,252,07,250.

(2) The Board of Audit and Inspection conducted an audit on the National Tax Service in 2008, and pointed out that the instant facilities do not fall under the energy-saving facilities stipulated in attached Table 8-3 of the Enforcement Rule of the Act on Special Cases concerning Taxation.

(3) On March 11, 2009, the Defendant revoked the above disposition of refund ex officio and notified the Plaintiff to pay corporate tax of KRW 7,329,239,980 (including additional payment for arrears of KRW 950,107,530) to the Plaintiff (hereinafter “instant first disposition”) as pointed out by the said Board of Audit and Inspection (hereinafter “instant disposition”).

C. Disposition 2 of this case (related to corporate tax for the business year 2004)

The Plaintiff filed a claim for a corporate tax refund on December 7, 2007 with respect to the amount invested in the above two facilities, while the facilities and equipment Nos. 1-2 and 2 fall under the energy-saving facilities prescribed in Article 25-2(1) of the Restriction of Special Taxation Act, Article 22-2(1)1 of the Enforcement Decree of the same Act, and the Enforcement Rule of the same Act [Attachment 8-3]. However, the Defendant rejected the claim for the said refund on April 16, 2009 (hereinafter “instant second disposition”).

(d) Procedures of the previous trial; and

(1) On June 4, 2009, the Plaintiff filed a petition for a trial with the Tax Tribunal for the revocation of the instant dispositions Nos. 1 and 2 (Seoul High Court Decision 2009Da2689).

(2) On September 30, 2010, the Tax Tribunal revoked the part on the additional tax for arrears among the disposition No. 1 of this case, and dismissed the remaining appeal.

[Ground of recognition] Facts without dispute, Gap 1-6 evidence (including branch numbers), Eul 1 and 24 evidence (including branch numbers), the purport of the whole pleadings

2. Whether the first and second dispositions in this case are lawful

A. The plaintiff's assertion

(1) The instant facilities are the facilities generating energy again by using waste heat. The instant secondary facilities constitute “facilities generating effective energy, such as steam and hot water, by using smoke, heat, waste heat, and waste gas,” both stipulated in attached Table 8-3 [Attachment 8-3] of the Enforcement Rule of the Restriction of Special Taxation Act (amended by Ordinance of the Ministry of Finance and Economy No. 396 of October 16, 2004) (hereinafter “Attachment 1-1] (hereinafter “Attachment 2”), and fall under “facilities generating effective energy, such as steam and hot water,” among energy-saving facilities stipulated in attached Table 8-3 of the Enforcement Rule of the Restriction of Special Taxation Act.

(2) Equipment Nos. 1-1, 2, and 2 of the instant case constitute “energy generation and supply facilities” among the energy-saving facilities stipulated in the instant attached Table.

(3) The above interpretation has been confirmed several times through the existing authoritative interpretation by the National Tax Service, and in particular, in relation to the corporate tax for the business year 2003, the defendant reversed it without any special circumstances despite receiving the plaintiff's claim for refund. The first and second dispositions of this case violate the principle of retroactive taxation prohibition and the principle of protection of trust.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Determination on the first argument

(A) Under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret the provisions that clearly indicate preferential provisions among the requirements for tax reduction and exemption (see Supreme Court Decision 2008Du11372, Aug. 20, 2009).

(B) In light of such legal principles and the following circumstances, it is difficult to regard the instant facilities and equipment Nos. 1-1, 2, and 2 as “energy use facilities” stipulated in 1.b. of the instant attached Table. The Plaintiff’s first argument is without merit without further review.

O 이 사건 별표 규정의 에너지절약시설은 크게 ① 에너지이용합리화시설,② 대체에너지보급시설,③ 기타 시설로 구분된다.① 에너지이용합리화시설은 다시 그 시설의 내용에 따라 ㉮ 에너지 발생 및 공급시설,㉯ 에너지이용시설로 구분되고,㉮ 에너지 발생 및 공급시설의 세부항목으로는 보일러, 요(黨, 기와 또는 가마). 로(爛, 화로), 집단에너지시설이,㉯ 에너지이용시설의 세부항목으로는 산업 ・ 건물 부문 에너지 절약설비, 전력수요관리설비, 고효율인증기자재가 각각 규정되어 있다. 이러한 규정 형식에 비추어 보면, 에너지이용시설이란 전체 시설 내에서 에너지를 '이용'하게 되는 과정만 존재하면 그 부분만을 따로 떼어 에너지이용시설에 해당하는 것으로 해석할 수는 없고, 당해 시설의 전체적인 기능이 앞서 본 에너지 발생 및 공급시설에서 '발생 및 공급'한 에너지를 받아 이를 '이용'하는 시설에 국한된다고 봄이 상당하다. 만약 위와 같이 해석하지 않는다면, 위 에너지 발생 및 공급시설의 세부 항목인 보일러, 요 ・ 로 등도 특정 구성부분의 특성에 따라 에너지이용시설 중 폐기에너지회수설비, 보일러 ・ 요 ・ 로의 부속장치 등에 해당할 수 있게 되어, 에너지 발생 및 공급시설에서 증발량, 에너지사용효율, 최고 온도, 폐열회수율 및 기존시설의 개체 여부 등으로 그 해당요건에 엄격한 제한을 둔 취지가 무력화될 우려가 있다.

Article 22-2 (1) 1 of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 18704 of Feb. 19, 2005) stipulates the Energy Use Rationalization Act as a basis law for energy-saving private building. According to the provisions of each subparagraph of Article 2 of the Energy Use Rationalization Act (amended by Act No. 7860 of Mar. 3, 2006), the term "energy supply facilities" and "energy use facilities" are clearly distinguishable from the expression of the provisions of the attached Table of this case. In this case, energy use facilities refer to "facilities such as factories and places of business using energy, or facilities using converted energy by converting energy into factories and places of business using energy." Thus, it is reasonable to view that the facilities and subparagraph 2 of this case are not such energy use facilities but rather facilities installed to produce, convert, transport, or store energy.

(2) Judgment on the second argument

There is no evidence to deem that the energy generation and supply facilities, i.e., boiler, stove, and integrated energy facilities, which are stipulated in paragraphs (1), (1), (2), and (3) of the attached Table 1-1, (2), and (3) of this case. In particular, even if the layout boiler among the facilities Nos. 1-1, (2) of this case falls under the “stoves” referred to in paragraph (a) (1) of the attached Table 1-1, 2 of this case, the boiler subject to the tax credit is limited to the replacement of the existing facilities, and the above layout boiler is newly installed, not subject to the tax credit. Accordingly, the plaintiff’s second assertion is without merit.

(3) Judgment on the third argument

(A) The principle of good faith or the principle of respect for tax practice under Article 18(3) of the Framework Act on National Taxes applies only to cases where there are special circumstances deemed that the protection of taxpayer’s trust is consistent with the concept of justice even if the principle of legality is sacrificed. Generally, interpretation of tax-related Acts or the practice of national tax administration accepted by taxpayers refers to the extent that it is deemed unreasonable for taxpayers, who are not a specific taxpayer, to have accepted an erroneous interpretation or practice as justifiable and thus, to trust such interpretation or practice. The burden of proof as to the existence of such interpretation or practice is the taxpayer (see Supreme Court Decision 2001Du1253, Oct. 25, 2002). Meanwhile, if the tax authority revoked a taxation disposition by deeming the grounds for objection as justifiable in the procedure of filing an objection against the taxation disposition as direct authority, then the latter reversal of such erroneous interpretation or practice without any justifiable reason should not be allowed (see Supreme Court Decision 200Du12509, Sept. 209). 200).

(B) As to the instant case, even if there was an authoritative interpretation and inquiry meeting by the National Tax Service, such as the Plaintiff’s assertion, it cannot be deemed to have external binding force, and it cannot be deemed to fall under a case where a specific condition is satisfied with respect to an inquiry by a specific person. As such, such interpretation cannot be deemed to be generally accepted by taxpayers or a public opinion that is subject to taxpayer’s trust. ② The Plaintiff did not apply for the tax credit for the amount invested in the facilities and equipment and equipment Nos. 1-1, 2 and 2 of this case at the time of reporting and paying the initial corporate tax, and ③ the Defendant, as the recipient institution, has already cancelled the previous refund ex officio and has no choice but to take the first disposition in accordance with the Board of Audit and Inspection’s pointed out, as well as the Plaintiff’s third assertion to the effect that the instant disposition was unlawful in violation of the principle of retroactive taxation prohibition and the principle of good faith and good faith.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.