Whether it is not eligible for tax credit for specific equipment because it falls under used goods.

Since it falls under used facilities used in accordance with the purpose of production before investment in kind, it is not subject to tax credit for specific equipment.

Tax credit for investment in specified equipment Article 25 of the Restriction of Special Taxation Act

Article 96 of the Enforcement Decree of the Corporate Tax Act

1. The plaintiff's appeal is dismissed.

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

The decision of the first instance shall be revoked. The part of the defendant's corporate tax of 5,697,256,125 won against the plaintiff on December 1, 2005 in excess of 52,748,685 won of corporate tax of 2000 and the part exceeding 169,312,470 won of corporate tax of 1,767,718,129 won of corporate tax of 201 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation concerning this case is as follows, and thus, the reasoning for the judgment of the court of first instance is the same as the part concerning the reasoning for the judgment of the court of first instance, and thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the

[Attachment]

(a) revise the first instance court's second sentence (other than the second sentence) to ‘Daehan';

(b) To revise the third chapter 3 to Sliveiveiv, "from 3 to 0.05, '7,035,761,200 won '7,035,761,200 won '(3,210,805,390 won + the deducted amount due to the investment in the exhauster recovery boiler '3,824,95,810 won (=76,49,116,350.05) from 3,824,95,810 won (=76,49,116,350.05) from 3,824,95,810 won due to the investment in the exhauster and nitrogen oxide reduction equipment)'

(d) revising 3rd page 14 to 5,669,509,110 won;

(e) revise the "special tax credit amount for investment for specific equipment" to the "special tax credit amount for investment for specific equipment" at the third place (except for each week);

(f)the modification of "air pollution damage" of Type 3 to "air pollutants";

G. Of the instant disposition on January 14, 2007, the Defendant’s correction to “the head of the Southern District Tax Office” on January 24, 2007, of the instant disposition on January 24, 2007

(h) revise "76,49,166,355 won" of Chapter 7 as "76,49,116,355 won";

(i) To revise only the third party contract as ‘only the construction contract' from the fourth side to ‘the third party contract';

(j) Modification of the 's 's 's 's 's 's rheat gas boiler' to the 's 's 's 's 's 's 's

(k) revise the 7th page 4 as the '○ Energy' in the 7th page to the 'Gu ○ Energy'.

(l) On December 1, 1999, the amendment of "the plaintiff on December 1, 1999" to "the plaintiff on December 16, 1999 after completing the investment in kind on December 16, 199."

(m) revise from the 7th page to the 1,687,672,230 Won, "1,687,672,330";

(n) On the 8th page 1, “○○” added from September 1, 1999 to November 30, 1999.

(o) by modifying "16,169,700 won" for Class 8 6 '91,628,300 ';

(p) to the Minister of Commerce, Industry and Energy, the "Minister of Industrial Affairs" of the last parallel (other than the head of each State);

(q) revise the 6,852,380,891 Won for the 6,852,388,910 for the 6,852,38,910 of conduct 9;

(r) to 13 pages 9 through 13, '(1) whether the tax credit for investment in specific equipment is applied', as follows:

(1) Whether tax credit for specific equipment is applied

(A) Article 25(1)1 of the former Restriction of Special Taxation Act (hereinafter referred to as the “instant reduction provision”) provides that the amount equivalent to 5/100 of the investment amount shall be deducted from corporate tax in the case of investing in the energy-saving facilities as prescribed by the Presidential Decree by December 31, 200, but the “investment in used goods” shall be excluded from the object of deduction. The Defendant issued the instant disposition on the ground that the instant development facilities fall under the Plaintiff’s heavy equipment at the time of acquisition and do not fall under the subject of tax credit under the instant reduction provision. Accordingly, it can be deemed that the instant development facilities were completed only when the Plaintiff passed the acquisition performance test as stipulated in the construction contract and received the notice of acceptance. Accordingly, at the time of the Plaintiff’s acquisition of the instant development facilities, the instant development facilities were merely an unregistered asset, and therefore, the Plaintiff is entitled to tax credit for the amount invested in the instant development facilities.

(B) Under the principle of no taxation without the law, the interpretation of tax laws and regulations shall be interpreted in accordance with the law, barring any special circumstances, and it shall not be extensively interpreted or analogically interpreted without the reasonable reason, and in particular, it shall be in line with the principle of fair taxation to strictly interpret the provisions that are clearly preferential in terms of the requirements for reduction and exemption (see Supreme Court Decision 2003Du7392, May 28, 2004). The term "used goods" subject to the exclusion from the provision of the reduction and exemption in this case refers to "facilities that are actually used in accordance with their manufacturing purposes." In light of the following, it is reasonable to view that the development facilities in this case constitute "used goods" as facilities that were already used in accordance with the manufacturing purposes as of December 1, 199 acquired by the Plaintiff.

① First, it is called a “commercial operation” to operate power generation facilities for commercial purposes in connection with the system sub-nets after completing the pre-use inspection under the Electric Utility Act and completing the reliability test. In addition, ○○ completed a reliability test for the power generation facilities of this case on November 1, 199 and reported its commencement to the Minister of Commerce, Industry and Energy pursuant to the Electric Utility Act. After continuing to operate the power generation facilities of this case and supplying electricity to the Korea Electric Power Corporation on November 1, 1999, the instant power generation facilities of this case were already used in accordance with their manufacturing purpose by starting commercial operation of the power generation facilities of this case. In light of the fact that the electricity charges of this case are included in the above electrical charges of 19,00,000,000 won, it can not be seen that it is more reliable than that of the instant 19,000,000 won, and it can not be viewed that it is more reliable than that of the instant complex 19,000,00 won.

② In light of the fact that around July 199, around 100% of the power generation facilities of this case, the development facilities of this case had already been recorded as having achieved the progress rate of 100% around July 1, 199, it appears that the power generation facilities of this case had been completed with the performance to the extent that they could have been actually used according to the manufacturing purpose (in other facilities, i.e., steam turine or nitrogen oxide reduction equipment was completed at any time, but there was no data to know when the other facilities, i.e., steam turine or nitrogen oxide reduction equipment was completed, in light of the purport of all pleadings, it appears that

③ Even if the acquisition notice is issued after completion of the performance test for acquiring the power generation facilities of this case, it is merely an agreement between the parties to the construction contract, and it cannot be deemed that it depends on whether the power generation facilities of this case are used in accordance with the content of the agreement, not used goods (the interpretation of the tax law should be interpreted in accordance with the legal text, and in particular, the provision on reduction and exemption, which can be viewed as a preferential provision, should be interpreted more strictly in light of the legal principle as seen earlier, which states that the provision on reduction and exemption should be interpreted more strictly).

(C) On the other hand, the Plaintiff asserted that, since the former ○○ Energy or ○○ did not receive the tax credit for investment in the specific equipment for the invested amount of the development facilities of this case, the Plaintiff could not receive any tax credit for the invested amount of the development facilities of this case after the lapse of the exclusion period. However, the investment tax credit system under the provision of this case is a system that has been temporarily implemented for the purpose of enhancing corporate productivity and enhancing the competitiveness through the improvement of corporate productivity and expanding the foundation for the stable growth of the national economy (the tax credit system for the energy-saving facilities was deleted after the amendment of the former Restriction of Special Taxation Act on December 29, 200), and it does not necessarily have to be subject to the tax credit upon the application of the parties. Therefore, the Plaintiff’s above assertion cannot be accepted.

In addition, the plaintiff must complete construction works within the fixed period set by the Minister of Commerce, Industry and Energy with respect to the power generation facilities of this case under the Electric Utility Act and report the commencement of construction work. At the time, the Minister of Commerce, Industry and Energy cannot extend the construction period more than twice after the extension of the construction period, demanding the continuous completion of construction. In addition, ○○ has made a report on the commencement of construction on November 1, 1999 without the completion of the construction of the power generation facilities of this case, and it does not report the commencement of construction for the original purpose of production. However, ○○ filed a report on the commencement of construction of the business without the genuine intent of the Minister of Commerce, Industry and Energy with respect to the fact that ○○ reported the commencement of construction without the real intention of the commencement of the business in accordance with the demand of the Minister of Commerce, Industry and Energy, it is insufficient to recognize the completion of construction

(D) Therefore, since the power generation facilities of this case are used as used for manufacturing purposes before they are invested in kind by the plaintiff, the plaintiff who acquired them cannot obtain tax credit pursuant to the provision of the reduction or exemption of this case, and therefore, the plaintiff's assertion on this part is without merit.

(s) revise the third-party tax base report from pages 13 to the "tax base return";

2. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

[Seoul Administrative Court 2007Guhap15636, 2008)]

1. The plaintiff's claim is dismissed.

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

The defendant's corporate tax of December 1, 2005 exceeds 5,697,256,125 won of corporate tax of 52,748,685 won of corporate tax of 2000 for the plaintiff, and the part exceeding 169,312,470 won of corporate tax of 2001 for the business year.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings in each entry in Gap evidence 1-2, Gap evidence 1-2, Eul evidence 2, Eul evidence 3-1, 2, Gap evidence 7, 8, and Eul evidence 1-2:

A. The plaintiff (the "original "○ Energy Co., Ltd." was the first "○○" Co., Ltd., and the trade name was changed as of October 19, 2000, and as of September 9, 2005) is a company established on December 16, 199 for the purpose of domestic and overseas construction and operation of power plants and power production facilities, domestic and overseas power generation, transmission, transformation, distribution, and business related thereto.

B. The Plaintiff filed an application for deduction of 64,216,107,840 won among the investment amount of the exhauster recovery boiler (Ma7,8,99) 64,216,107,840 won among the investment amount in the second stage power generation facilities of the Incheon Seo-gu 00, Seo-gu 00 00 ○○○○○○ 1 (hereinafter referred to as the “○○○”) with the return of corporate tax on March 27, 2009, after deducting 3,210,80,05,390 won (64,2107,840,05,000,000 won) from the investment amount of the specific equipment investment tax under Article 25 (1) 1 of the former Restriction of Special Taxation Act (amended by Act No. 6297, Dec. 29, 200; hereinafter referred to as the “former Restriction of Special Taxation Act”). However, the Plaintiff filed an application for deduction of less than 130509,5090.

C. On January 19, 2001, the Plaintiff requested the head of ○○○ Tax Office to correct the increase of total amount of investment in 3 combined 148,416,804,643 won (84,200,696,803 won) in 148,49,643 won (the increase in total amount of 84,207,701,580,4480,548 won excluding the total amount of investment in buildings, the amount of construction, the amount of non-construction, 7,701,580,448 won) among the total amount of claim for correction filed by the Plaintiff on March 17, 2001. The head of ○○○○ Tax Office decided to increase the total amount of investment in 76,49,169,165 won for the machinery and equipment other than the total amount of investment in specific equipment under Article 25(1)1 of the former Restriction of Special Taxation Act.

Accordingly, the Plaintiff received 7,036,761,200 won (the total investment amount of KRW 64,216,107,840 + 76,840 + 76,116,35 won (the total investment amount of KRW 64,216,840 + KRW 76,49,116,355), 199 (the total investment amount of KRW 64,216,66,252,09,100, excluding the total investment credit amount of KRW 5,670,50,109, and the total investment credit amount of KRW 1,366,252,09,100 for the business year of 199 and the revised report on March 20, 200, 2005, 2005, 105, 2005, 2005, 2005, 106,416,57

D. However, from September 9, 2005 to November 21, 2005, the director of the regional tax office of ○○○ Regional Tax Office did not invest in the instant power generation facilities by the Plaintiff, but did not acquire the instant power generation facilities that have been invested by the Plaintiff, and notified the Defendant of the fact that the Plaintiff was not subject to the tax credit for investment in specific equipment under Article 25 of the former Restriction of Special Taxation Act (acquisition of used assets). On December 1, 2005, the Defendant denied the amount of the special tax credit for investment deducted for each year from the Plaintiff, and the Defendant did not correct and impose corporate tax for each business year of 2000 to KRW 7,596,503,40, corporate tax for each year, corporate tax for 2,838,649,910 for each business year (with respect to the corporate tax for 199, due to the lapse of the exclusion period of taxation under Article 26-2(1)3 of the Framework Act on National Taxes).

E. On February 28, 2006, the Plaintiff filed a request for a national tax review with the National Tax Tribunal. On January 14, 2007, the National Tax Tribunal rendered a decision to reduce the amount of tax and dismissed the remaining claims on February 28, 2007, on the grounds that it is unlawful for the Defendant to impose an additional tax on the tax credit for investment in specific equipment due to the amount invested in KRW 76,49,16,355, which was decided to increase as of March 17, 2001. Accordingly, on February 28, 2007, the Defendant rendered a decision to reduce the amount of tax to the Plaintiff from KRW 1,89,247,280,931,781 as of the above corporate tax for the business year 2001 (the Plaintiff’s corporate tax for the business year 5,697,256,125,201,201,71,2717,297,2717.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The construction contract for the power generation facilities of this case constitutes a contract for manufacture supply, which constitutes a contract for production, and the completion of work under the production contract is insufficient only by the completion of the process, and the main structural part of the object is constructed as agreed upon and shall have the performance generally required by social norms. Since the construction contract for the power generation facilities of this case provides that the contractor shall pass through performance test on the construction contract for the power generation facilities of this case (if the plaintiff submitted, it is only the construction contract for the exhauster recovery boiler), and the contractor shall be deemed to have the obligation to pay the construction cost at the time of issuing the notice of acceptance, it shall be deemed that at least the completion of the acquisition performance test is the situation where the power generation facilities of this case can be used at least after December 13, 199. Accordingly, since the Plaintiff’s development facilities of this case at the time of receiving the investment in kind from the ○ of December 1, 199 to the date of the investment in kind, the amount of the investment in the specific facilities of this case shall not be a new asset.

(2) Correction related to the tax credit for investment must be based on the business year in which the actual investment was made, and it is apparent that the business year in which the actual investment was made in the development facilities of this case is 199. Thus, even if the total amount of the tax credit for investment in the development facilities of this case was carried over due to the application of the minimum tax in 1999, it shall be deemed that the exclusion period for national tax assessment under Article 26-2(1)3 of the Framework Act on National Taxes has expired for the total amount of the tax credit for investment in the development facilities of this case in the business year 1999. Therefore, the tax disposition of this case, which collected the amount carried over in the business

B. Relevant statutes

Attachment 'Related Acts and subordinate statutes' shall be as shown.

(c) Fact of recognition;

In full view of the evidence mentioned above, evidence Nos. 4, 5, evidence Nos. 6-1, 2, 9 through 16, evidence No. 18-21, evidence No. 22-1, 2, 3, evidence No. 3-1, 2-2, 4, 5, evidence No. 6-1, 2-2, and evidence No. 7, evidence No. 1, 3-2, evidence No. 4, and evidence No. 6-1, 6-2, and evidence No. 7, the following facts may be acknowledged:

(1) Construction contracts on the instant power generation facilities

(A) Around July 1996, the ○○ Energy Co., Ltd. (hereinafter referred to as the “former ○○ Industries Co., Ltd.”) concluded a construction contract with respect to the installation of exhaust gas boiler and nitrogen oxides reduction equipment among the instant power generation equipment to ○○○○○○○ (Hitachi Works, Hitachi Ltd) with respect to the remainder of steam turbine construction work. However, the construction cost of the said three main equipment is KRW 140,715,24,195.

(B) On the other hand, among the construction contracts on the installation work of the heat recovery boiler among the instant power generation facilities concluded between the former ○○ Industries, the main contents of the instant construction contract are as follows (not only Ma7,8,9 but also Ma10,11, and Ma12).

① As to “construction,” the former ○ Energy is defined as issuing a notice of acceptance after meeting the performance test specified in the above contract (Article 1(29)).

(2) The term "performance test" means an assessment of whether the performance test for the complex process as prescribed in the technical specification is met or not, and the guarantee performance and the guarantee acceptance value as prescribed in the "performance guarantee data". The former ○○ Energy and the contractor agreed that the preparation for the performance test for the takeover performance of the respective power plant zones has been completed, and the contractor directly carries out the performance test at his own expense, and the contractor shall submit six copies of the examination data and report to the former ○ Energy within one month after the completion of the performance test (Article 1(28), and Article 38(4)3).

(3) The contract deposit out of the contract amount shall be ten percent of the contract amount, and it shall be from the date the contract becomes effective.

The payment in cash shall be made within 15 days and the payment for completed portion shall be 85 percent of the price for each facility item for each shipment, and shall be made within 60 days from the date on which the contractor presents the transport documents referred to in Article 24, and the balance shall be paid within 50 days from the date on which the former ○ Energy issues the notice of acceptance of the power plant (Article 36(1));

(4) Where the performance test of takeover of a power plant is completed satisfactory and all the contractual obligations of the contractor are performed, the Corporation shall be deemed to be undertaking, and the ○○ Energy shall be issued a written notice of acceptance to the contractor (Article 39(1)).

(2) Transfer of power generation facilities of this case

(A) On August 31, 199, the former ○ Energy separated the electric generation business sector and sold it to ○○ by transfer. From March 1999, ○○, which was established an overseas joint venture or sale plan to solve liquidity problems at the time of underwriting in the electric generation business sector, concluded a contract between the Plaintiff and the Plaintiff, which was established at the time of November 26, 199, to make an investment in kind in the property related to the electric generation business operated by ○○ including the instant electric generation facilities, and established the Plaintiff on December 1, 199.

(B) The power generation facilities of this case in the Plaintiff’s report of December 1, 1999 (from December 1, 1999 to December 31, 1999) are classified as three-lanes in the specifications of tangible assets (the basic balance is KRW 73,953,485,00, and KRW 143,308,470,094, which is replaced with mechanical asset in the current construction, from the assets in the current term), and the account statement by 2,939,223,110 (the amount payable to ○○ Heavy Industries is the amount calculated by adding up KRW 1,687,672,230 and the reservation amount for other power generation facilities unrelated to this case).

(3) Payment of the present value and the cost of the construction

(A) During the period from January 1, 1996 to August 31, 1999, the former ○○ Energy paid KRW 137,344,000,000 among the construction cost of the instant power generation facilities; and ○○ paid KRW 1,349,000, respectively, the amount equivalent to KRW 98.7% of the total construction cost.

(B) On the other hand, among the power generation facilities of the former ○○ Energy in this case, the progress rate totaling around May 1999 to 99.68%, and the amount of the gold conference totaling at KRW 0.32%, and the amount of the gold conference totaling at KRW 91,732,00 (the cumulative disbursement rate at KRW 94.73%, September 17, 1999), the progress rate totaling around July 199 to 10%, the amount of the gold conference totaling at KRW 0.32%, and the amount of the gold conference totaling at KRW 16,169,70 (the cumulative disbursement rate at KRW 95%) shall be KRW 1,687,672,330.

(C) The Plaintiff, among the power generation facilities of this case, conducted the performance test of the acquisition of the steam recovery boiler on December 7, 199; on December 9, 199, the performance test for the takeover of the steam turbine; and on December 1 through 13, 199, respectively; and on December 17, 2000 and December 16, 199, the ○○ Heavy Industries completed the performance test report on the takeover performance test of the above exhaustr recovery boiler and nitrogen oxide reduction equipment (it is not known that the report on the results of the performance test for the surbine turine was not known); and on February 7, 2000, the Plaintiff issued a notice to the ○○ Heavy Industries for the acceptance of the exhaustr's heat recovery boiler among the power generation facilities of this case.

(D) On May 25, 2000, the Plaintiff paid KRW 1,687,800,000 to ○○ Heavy Industries Co., Ltd., which acquired the instant power generation facilities and the instant reserved money claim from ○○ Heavy Industries Co., Ltd. for the final and unpaid amount of the exhaust gas recovery boiler out of the instant power generation facilities.

(4) Commencement of ○○’s business and sale of electricity

(A) By October 31, 1999, ○○ reported to the Minister of Industry on November 1 of the same year the commencement of the project of the third-class steam from among the power generation facilities of this case, after completing the trial operation of the exhaust heat recovery boiler) and reliability operation.

(B) On December 8, 1999, ○○○ Construction: (a) on November 8, 1999, KRW 8,213,519,70 with electric power rates of KRW 3,00 with respect to the instant compoundized 3 units; (b) KRW 5,926,935,138 with respect to electric power rates of KRW 2,286,584,560 with respect to electric power rates of KRW 2,286,584,560; and (b) on the other hand, ○○○○○○ Construction with a charge of electric power rates of KRW 6,852,380,89 with respect to the instant compoundized 3 units of nuclear power rates of KRW 3; (b) KRW 5,926,97 + KRW 364,627,3636,275,294,276364,2764,27636,2764,27,36364,27,467,27

D. Determination

(1) Whether tax credit for specific equipment is applied

(A) Article 25(1)1 of the former Restriction of Special Taxation Act provides that an amount equivalent to 5/100 of the investment amount shall be deducted from income tax (limited to income tax on business income) or corporate tax if an investment is made in a facility prescribed by the Presidential Decree as deemed necessary for industrial policies among the energy-saving facilities, and Article 25(1)1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by the Presidential Decree No. 17034, Dec. 29, 2000); Article 22(1)1 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by the Presidential Decree No. 17034, Dec. 29, 2000); Article 13(1)3 of the former Enforcement Rule of the Restriction of Special Taxation (amended by the Ordinance of the Ministry of Finance and Economy No. 184, Mar. 28, 200) of the former Enforcement Rule of the Restriction of Special Taxation Act.

However, Article 25 (1) of the former Restriction of Special Taxation Act provides that the amount equivalent to 5/100 of the investment amount shall be deducted from the income tax or corporate tax for the taxable year to which the "date of completing the investment" belongs by applying mutatis mutandis Article 11 (1) of the same Act with respect to the tax credit method for the investment amount for the specific equipment, and the "date of completing the investment" refers to the "date of actually using the relevant facility for its original purpose".

On the other hand, the interpretation of tax laws and regulations is to be interpreted in accordance with the principle of no taxation without the law, or to prevent the requirements of tax exemption or tax exemption, barring any special circumstance, and it is not allowed to expand or analogically interpret without any reasonable reason, and in particular, it accords with the principle of fair taxation (see Supreme Court Decision 2003Du7392, May 28, 2004).

(B) In the instant case, the Plaintiff asserted that, in light of the fact that the Plaintiff agreed to notify the acquisition after completion of the acquisition performance test under the construction contract and to pay the balance, at least after completion of the acquisition performance test, it shall be deemed that the Plaintiff should be deemed as having been able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to have been completed. Accordingly, the Defendant asserted that, after completion of the reliability driving, the Defendant made a report on commencement of business on November 1,

In the case of a power plant, the term "construction completion" is determined after completion of the performance test and the remaining payment is general after completion of the performance test, but this is merely a contract between the parties and it is impossible to determine the timing of national tax deduction in accordance with the terms and conditions of the contract. As to the facts clearly confirmed as "the completion of investment", the time of deduction varies according to the terms and conditions of the contract provided by the parties, which is contrary to the principle of clarity of tax requirements (as for the plaintiff at least after the completion of the performance test, it is argued that the date of completion should be determined according to the terms and conditions of the contract, i.e., the "construction completion" between the parties, i., the date of completion of the performance test and the date of issuance of the notice of acceptance after the completion of the performance test. Thus, according to the concept of "construction completion under the contract", the term of "construction performance test of the plaintiff's facilities can not be completed for the purpose of completing the performance test of the plaintiff's construction of the facility in this case.

As a result of the examination conducted for the construction project of this case, the Plaintiff’s report on the completion of the construction work of this case as “the completion date of the construction work of this case.” However, the Plaintiff’s report on the completion date of the construction work of this case as “the completion date of the construction work of this case.” However, the Plaintiff asserted that the completion date of the construction work of this case and the completion date of the construction work of this case was not completed for 72 hours. However, unlike the contract, it cannot be said that the completion date of the construction work of this case is not completed for 9 hours. It is reasonable to view that the Plaintiff’s report on the completion date of the construction work of this case as “the completion date of the construction work of this case.” The Plaintiff’s report on the completion date of the construction work of this case as “the completion date of the construction work of this case.” However, it is difficult to view that the completion date of the construction work of this case would not necessarily affect the reliability of the construction work of this case as “the completion date of the construction work of the construction work.”

(C) Therefore, the development facilities of this case are deemed to have been completed on November 1, 199, prior to the investment in kind to the Plaintiff, and the Plaintiff who received the investment in kind is not entitled to receive the tax credit for investment in specific equipment for the development facilities of this case pursuant to Articles 25 and 11(1) of the former Restriction of Special Taxation Act. The Plaintiff’s assertion on this part is without merit.

As the plaintiff did not receive the tax credit for investment from the specific equipment due to the development facilities of this case, the plaintiff asserted that the tax credit for investment from the development facilities of this case can not be received any more due to the expiration of the exclusion period. However, the tax credit for investment from the specific equipment under Article 25 of the former Restriction of Special Taxation Act is a system temporarily implemented to improve the competitiveness of the company through improvement of productivity and to support the expansion of the foundation for the stability of the national economy (the tax credit for the specific equipment of the energy-saving facilities of this case was deleted by the amendment of the Act on December 29, 2000), and it does not necessarily be subject to the tax credit on the application of the parties, and thus, the plaintiff's assertion cannot be accepted.

(2) Whether the exclusion period has expired

(A) In light of the above, Article 26-2(1) of the Framework Act on National Taxes limits the period of exclusion from the imposition of national taxes to five years from the date on which national taxes can be imposed, except where a taxpayer evades national taxes or fails to submit a written tax base within the statutory due date of return by fraud or other unlawful act. Upon the expiration of the statutory due date of return, the taxation authority is prohibited from taking any disposition, such as a new decision or decision of increase, and a decision of correction, unless the special exclusion period stipulated in Article 26-2(2) of the Framework Act on National Taxes can be applied (see Supreme Court Decision 2003Du1752, Jun. 10, 2004). Therefore, it is justifiable to deem that the Defendant did not make a decision of correction as to the Plaintiff’s corporate tax for the business

(B) However, the purpose of the Framework Act on National Taxes is to place restrictions on the period in which national taxes can be imposed at the tax authorities in order to ensure the legal stability of tax liabilities by immediately closing the rights and obligations with respect to national taxes between taxpayers and countries, and to place restrictions on the method and scope of calculating the tax base and tax amount prescribed in individual tax laws, and it does not exist. Thus, the exclusion period for imposing the national tax for the specific business year shall expire from the exclusion period for imposing the national tax, and it shall not be calculated differently from the case where there was no business year for which the period for imposing the tax base and tax amount has expired (see Supreme Court Decision 2001Du2652 delivered on November 26, 2002).

(C) Therefore, the Plaintiff’s corporate tax for the 2000 business year and corporate tax for the 2001 business year cannot be deemed to have expired (the 2000 business year reported respectively on March 29, 2001 and March 31, 2002 as seen earlier) and the Plaintiff’s assertion on this part is without merit.

As to this, the plaintiff asserts that the imbalance between the company which was not allowed to deduct carried forward due to the application of the minimum tax, etc. and the company that did not do so, but this is not acceptable as it asserts the equality of illegality in relation to matters which could not have been initially deducted from the tax credit for specific investment facilities.

(3) Therefore, the disposition of this case rendered by the Plaintiff denying the application of the tax credit for investment to the specific equipment for the development facilities of this case is lawful.

3. Conclusion

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

Related Acts and subordinate statutes

【former Restriction of Special Taxation Act (amended by Act No. 6297 of Dec. 29, 2000)】

Article 11 (Tax Credit for Investment in Equipment for Technology and Manpower Development)

(1) In case where a national makes an investment in facilities for the development of technology and manpower or the commercialization of new technology (excluding an investment in used goods) not later than December 31, 2003, the amount equivalent to 5/100 of such investment amount shall be deducted from the income tax (limited to the income tax on business income) or the corporate tax in the taxable year whereto belongs

(3) In case where the investment under paragraph (1) is made over two or more taxable years, the provisions of paragraph (1) may apply to the amount invested for each taxable year in which such investment is made.

【former Restriction of Special Taxation Act (amended by Act No. 6297 of Dec. 29, 2000)】

Article 25 (Tax Credit for Investment in Specific Equipment)

(1) In case where a national makes an investment (excluding any investment in used goods) in such facilities as are deemed necessary for industrial policies and prescribed by the Presidential Decree from among those falling under any of the following subparagraphs not later than December 31, 2000, the amount equivalent to 5/100 of the investment amount shall be deducted from the income tax (limited to the income tax on his business income) or the corporate tax. In this case, the provisions of Article 11 (1), (3) and (

1. Energy-saving facilities;

【former Restriction of Special Taxation Act (amended by Act No. 6297 of Dec. 29, 2000)】

§ 144. Deduction carried forward of tax credit)

(1) The amount equivalent to the tax amount to be deducted under Articles 5, 10, 11, 24 through 27, 27-2, 62 (1) and (2), 65 (2), 94, 103, and 126 of this Act and Article 12 (2) of the Addenda (limited to the amended provisions of Article 37) of the Addenda which has no tax amount to be paid in the corresponding taxable year or the portion which has not been deducted by applying the minimum tax under Article 132, from among the tax amount to be deducted under Articles 5, 10, 11, 24 through 27, 27-2, 62 (1) and (2), 65 (2), 94, 103, and 126, shall be carried over to each taxable year ending within four years

【former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17034 of Dec. 29, 2000)】

Article 22 (Scope of Investment in Specific Equipment)

(1) "Facilities prescribed by Presidential Decree" in the main sentence of Article 25 (1) of the Act means facilities falling under any of the following subparagraphs:

1. Energy-saving facilities under the Energy Use Rationalization Act (including the case of establishment by an enterprise specialized in energy saving under the same Act on condition that ownership is acquired after installment payments), as prescribed by the Ordinance of the Ministry of Finance and Economy, and facilities

[former Enforcement Rule of the Restriction of Special Taxation Act (amended by Ordinance of the Ministry of Finance and Economy No. 184 of March 28, 2001)

[Attachment]

【former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 17034 of Dec. 29, 2000)】

Article 13 (Scope of Specific Equipment)

(1) "Energy-saving facilities prescribed by Ordinance of the Ministry of Finance and Economy" in Article 22 (1) 1 of the Decree means the energy-saving facilities specified in attached Table 3.

[Attachment 3] Energy Economizing Facilities (Related to Article 13(1)

Classification

Details of equipment

Scope

2. Installation of energy-saving facilities;

4. Other equipment.

(a) Heat integrated power generation facilities;

(b) Heat supply facilities;

(c) Reserve-oriented machinery;

(i)heat exchangeers;

(ii)Waste heat boilers;

(k) Waste heat and waste gas use facilities;

Other energy saving equipment

Of power generation volume of not less than 500kis, those used for manufacturing or mining;

Those the heat supply rate of which is at least 30,000kg per hour;

(a)to exhaust the air or fuel by burning heat (including heat emitted from heating).

Those producing steam or hot water by burning heat (including heat discharged from heat heat),

(a) Facilities using waste heat or waste gas, which are disposed of or emitted from various heat facilities or production processes;

The energy reduction effect of which is not less than 10 percent and recognized by the president of the Energy Management Corporation.

○ [Basic Provisions of the Restriction of Special Taxation]

5-02 (Standards for Date of Completion of Investment) For the purpose of Articles 5 (1) and 11 (1) of the Act, the term “date of completing the investment” means the date on which the relevant facilities are actually used for their original purposes.

【Framework Act on National Taxes】

Article 26-2 (Period for Excluding Assessment of National Tax)

(1) No national tax may be levied after the period provided for in the following subparagraphs expires: Provided, That the provisions of a treaty concluded in order to prevent double taxation (hereinafter referred to as "tax treaty"):

Where the mutual agreement procedures are in progress under the conditions, Article 25 of the Act on the Adjustment of National Taxes shall apply.

3. If it does not fall under subparagraphs 1 and 2 above, for five years from the day on which the national tax is assessable; and

* Note *

(i)

* Note *

2) The equipments reducing air pollution emitting in the process of burning are installed one unit per one exhaust heat recovery boiler.

* Note *

3) In other words, the "acquisition performance test" means a test conducted to verify whether the actual performance of a facility that has completed the construction meets the guarantee performance of the contract, which, in principle, is different in accordance with the terms and conditions of the contract, and is to be implemented within three months after the completion of reliability driving (Evidence A(11), and Guidelines).

* Note *

4) The objective of the trial operation phase is to secure the reliability of new equipment, coordinate all equipment to properly operate, and train drivers in perfect attendance. The test operation phase is to confirm whether the condition of installation of equipment and devices is appropriate and to check and perform functional tests, preliminary checkup by unit equipment and system, test driving, adjustment and record, equipment and pipeline system, pressing and leakage tests, comprehensive plant trial operation, guarantee performance test and equipment defects, and to draw up and correct these problems.

* Note *

6) It is called a “commercial driving” to operate power generation facilities for commercial purposes in connection with the system sub-nets after completing the pre-use inspection under the Electric Utility Act, and completing the reliability test. In general, when the automatic driving for 240 hours (e.g., reliability driving test) under the fixed schedule as specified in the contract is completed in a successful manner, the ordering person may report to the lessee and the electricity trading company, etc. in a certain form, and thereby may generate operating profits (Article 10 of the Electric Utility Act, and the growth and growth of the power plant).

* Note *

* Note *

7) The former ○○ Energy seems to have caused the conclusion of an electricity supply contract including the volume rate system that additionally compensates for power generation facilities with the ○○○ Construction.