(영문) 대법원 2009. 01. 15. 선고 2008두19451 판결

Whether it constitutes "small and medium enterprises engaged in manufacturing business" or not shall not be determined by the Korea Standard Industrial Classification only, but shall not be determined by taking into account the purport of the Act prescribing the special cases of tax reduction and exemption for small and medium manufacturing business, relationship with the relevant statutes, equity between the tax payers, etc.

The decision

The contents of the decision shall be the same as attached.

Text

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

Reasons

Although examining the judgment below in light of the records of this case, it is recognized that the argument on the grounds of appeal falls under Article 4 of the Act on Special Cases Concerning the Trial Procedure.

Therefore, the appeal is dismissed in accordance with Article 5 of the above Act. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Seoul High Court 2008Nu11602]

Text

1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The judgment of the first instance shall be revoked. Each disposition of the Defendant imposed corporate tax of KRW 62,626,080 for the Plaintiff on April 5, 2007, corporate tax of KRW 15,490,050 for the year 2004, corporate tax of KRW 36,264,170 for the year 205 shall be revoked.

Reasons

The court's explanation of this case is identical to the entry of the cause column of the judgment of the court of first instance, except for the dismissal of the cause column of the judgment of the court of first instance as follows. Thus, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

ｏ 제2쪽 10번째 줄의 "'소외 회사들'라 한다" ⇒ "'소외 회사들'이라 한다"

ｏ 제6쪽 10번째 줄의 말미에 다음 기재를 추가함

Article 7 (1) of the former Regulation on Tax Reduction and Exemption (amended by Act No. 5584 of Dec. 28, 1998) which provides for special cases of tax reduction and exemption similar to the provision on tax reduction and exemption in this case, "The Supreme Court Decision 2002Du4181 of Sept. 24, 2002 and Supreme Court Decision 2002Du9483 Decided Dec. 26, 2002 are also the same purport)"

ｏ 제9쪽 5번째 줄의 "(제조업과 유사한 사업으로서 재정경제부령이 정하는 사업을 포함한다. 이하 같다)" ⇒ "(소득세법시행령 제31조의 규정에 의하여 제조업으로 보는 업종을 포함한다. 이하 같다)"

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

[Seoul Administrative Court 2007Guhap42041, 2008)]

Text

1. The plaintiff's claim is dismissed.

2. The costs of litigation shall be borne by the plaintiff.

Purport of claim

The defendant's disposition of imposition of corporate tax of 62,626,080 won for the year 2003 against the plaintiff on April 5, 2007, corporate tax of 15,490,050 won for the year 2004, corporate tax of 36,264,170 for the year 205 is revoked.

Reasons

1. Details of the disposition;

A. The plaintiff was established on October 22, 199 for the purpose of "the manufacturing, export and import business, the miscellaneous export and import business, the trade business, etc., of the Mali-gu, Seoul 00-dong 000-00, the head office of which is located.

B. On May 2, 200, the Plaintiff invested 100% of the 100 Si to establish a '00000 Si (00000000)'. After November 8, 2005, the Plaintiff invested 100% of the 100% of the 100% shares and established '0000 '000000000000000000' (hereinafter referred to as 'the above companies') in the same 00% shares, and thereafter, established '00 '0000 '000000000000 in total' and 'the above companies') by providing the non-party companies, a Chinese local subsidiary, for manufacturing and processing of raw materials, etc. to acquire it in the name of the Plaintiff in China and engaged in business activities in the way of exporting it to third countries, such as Germany.

C. The Plaintiff: (a) deemed that the above business activity constituted a manufacturing business subject to corporate tax reduction or exemption under Article 7 of the former Restriction of Special Taxation Act (amended by Act No. 7003 of Dec. 30, 2003 and Article 7322 of the Act on Dec. 31, 2004; hereinafter the same shall apply); (b) Article 2(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2006; hereinafter referred to as the “instant reduction or exemption provision”); and (c) applied the above reduction or exemption provision, and filed a corporate tax for each business year by deducting the tax reduction or exemption amount of KRW 47,167,072 in the business year of 2003, KRW 12,691,564 in the business year of 204; and (d) 32,707,262 in the business year of 2005.

D. However, since the purport of the provision of this case is to support the small and medium manufacturing enterprises in Korea, the plaintiff, who manufactures products in the form of manufacturing process by entrusting manufacturing to a foreign subsidiary, does not fall under the "small and Medium Enterprises that operate manufacturing business" under the provision of this case, and its substance constitutes "market business (trade)", on April 5, 2007, the plaintiff issued a disposition of imposing corporate tax of 62,626,080 won as corporate tax for the year 2003, 15,490,050 won as corporate tax for the year 2004, and 36,264,170 won as corporate tax for the year 205 (including additional tax; hereinafter referred to as "the disposition of this case").

E. The plaintiff filed an appeal with the National Tax Tribunal on June 5, 2007, but was dismissed on September 6, 2007.

F. Meanwhile, the Commissioner of the Statistics Korea publicly announces and announces "Korea Standard Industrial Classification on the basis of the purpose of securing accuracy and comparison of statistical data related to industry". On the other hand, the Korean Standard Industrial Classification is classified as "manufacturing Industry" where the products are planned (a plan, design, sample production) to be produced directly, (b) the raw materials purchased from his own account are supplied to the contracting company, (c) the products are manufactured in his own name, and (d) the products are directly sold to the market under his responsibility after accepting them.

Facts without any dispute, Gap's evidence 1-1 to 4, Eul's evidence 1-2 to 3-2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The plaintiff intentionally deleted the part of "other manufacturers (limited to domestic companies)" (limited to those of this case), which are stipulated in the common rules of the Korea Standard Industrial Classification, because they meet all the requirements of the manufacturing industry (including product planning, purchase and supply of raw materials to their own account, manufacture under their own name, and sale under its own responsibility) and fall under small and medium enterprises, it is clear that the plaintiff's manufacturing enterprise falls under "small and Medium Enterprises engaged in the manufacturing industry" as stipulated in paragraph (1) of the former Act, and although the plaintiff's manufacturing enterprise is located in a foreign country, the provision of this case, which is applied in relation to corporate tax in each business year of this case, is defined as "other manufacturers (limited to domestic companies)" (limited to those of this case), which are defined in the previous common rules of the Restriction of Special Taxation Act, and the purport of this case is that only if the trustee company is a domestic company, it will not impose any restriction on whether the domestic company is a domestic company or a foreign company in the future, and it is meaningful to amend the provision of this case.

(2) Ultimately, the Defendant’s disposition of imposing this case by deeming that the Plaintiff did not constitute a small and medium enterprise operating a manufacturing business under the former’s “small and medium enterprise” merely because the Plaintiff requested the manufacturing of the product to a business located in a foreign country is unlawful in violation of the principle of prohibition of retroactive taxation and no taxation without law

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

(1) Although the following is adopted by the Korean Standard Industrial Classification as the classification criteria of the business types applied in the above Act, the Korean Standard Industrial Classification shall not apply to the case of this Act, and Article 4 of the former Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007) and the former Act provide that the term "small and Medium Enterprises" under this Act shall include manufacturing business (including any business similar to manufacturing business as prescribed by the Ordinance of the Ministry of Finance and Economy)............ The Korean Standard Industrial Classification, in principle, has a separate definition provision for preparing statistics necessary for the structural analysis of the domestic industry. In addition, the Korea Standard Industrial Classification is limited to the statistical purpose established to compile statistics necessary for the structural analysis of the domestic industry, and it is not appropriate to classify the main contents of the industrial activities into a foreign country, such as this case, and classify them into the industrial activities. In light of the above, it is not appropriate to determine whether the plaintiff's main provisions of this case's tax reduction or exemption and exemption from the Korean Standard Industrial Classification.

(2) Therefore, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without any justifiable reason. However, within the legal framework that does not undermine the legal stability and predictability pursued by the principle of no taxation without the law, a teleological interpretation according to the legislative intent and purpose and social norms shall not be permitted. Although the former provisions do not explicitly stipulate the scope of manufacturing companies requested to manufacture products under the provision of tax reduction and exemption, it is intended to maintain and develop the domestic manufacturing infrastructure and promote the balanced growth and stability of the national economy by protecting and fostering the domestic small and medium manufacturing industry with relatively less competitiveness. In light of the above, it does not conform to the purport of the Gu, which maintains and develops the domestic manufacturing infrastructure, and grants a manufacturing process overseas through consignment to an overseas local corporation as seen in the Plaintiff, and it does not conflict with the purpose of the Korea manufacturing industry, and thus granting a benefit to such a case would not only harm the benefit of the tax exemption and exemption between the taxpayers and the above domestic manufacturing-based business through the provision of this case.

(3) In addition, the General Rules of this case, on March 24, 2003, continued to exist as the criteria for interpretation and enforcement of tax-related Acts without being abolished even after the establishment of the provision of this case, and the Minister of Finance and Economy or the Commissioner of National Tax Service, who is the person having the authority to establish the provision of this case, has consistently interpreted and applied the provision of this case as not including the case of manufacturing a product by requesting a business located in a foreign country even after the establishment of the provision of this case, and the category of business deemed as manufacturing a product under the provision of "before the amendment of paragraph (1) of this case on December 30, 202". However, in light of the fact that the provision of this case, Article 2 of this case does not explicitly stipulate that "where a manufacturing business is requested by a manufacturer without directly manufacturing a product and satisfies the requirements of the following items, it shall be deemed that the new provision of this case was not included in the scope of domestic manufacturing business, which is similar to that of the plaintiff's new provision of this case.

(4) Therefore, the Defendant’s disposition of this case, which deemed that the Plaintiff did not constitute a “small and medium enterprise operating a manufacturing business” under the provision on reduction and exemption of this case, is legitimate, and the Plaintiff’s assertion on a different premise is without merit.

3. Conclusion

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

Relevant statutes

former Restriction of Special Taxation Act (amended by Act No. 6538 of Dec. 29, 2001 and amended by Act No. 8387 of Apr. 27, 2007)

Article 2 (Definitions)

(3) Except as otherwise expressly provided for in this Act, special taxation cases shall apply to the business types subject to the application of special taxation under this Act due to a change in the Korea Standard Industrial Classification publicly announced by the Commissioner of the National Statistical Office under this Act.

former Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007)

Article 4 (Contribution of Investment Reserves for Small and Medium Enterprises to Losses)

(1) Where a national operating a small or medium enterprise as prescribed by the Presidential Decree (hereinafter referred to as the “small or medium enterprise”) appropriates the investment reserves for expenses in order to appropriate for the funds required for replacement or new acquisition of the assets falling under any of the following subparagraphs (hereafter in this Article referred to as the “business assets, etc.”) not later than the taxable year ending on or before December 31, 2003, such reserves shall be included in the expenses in calculating the income amount for the relevant taxable year within the limit of the amount calculated by multiplying the value of the business assets, etc. as of the end of relevant

former Restriction of Special Taxation Act (amended by Act No. 7003 of Dec. 30, 2003)

Article 7 (Special Tax Abatement or Exemption for Small or Medium Enterprises)

(1) With respect to an enterprise engaged in the business of reduction or exemption under subparagraph 1 among small or medium enterprises, an amount equivalent to the tax amount calculated by applying the reduction or exemption rate under subparagraph 2 to the income tax or corporate tax on income accrued from such business not later than the taxable year ending on or before December 31,

1. Types of reduction or exemption;

(a) Manufacturing business;

(g) Wholesale business;

former Restriction of Special Taxation Act (amended by Presidential Decree No. 17829 of Dec. 30, 2007)

Article 2 (Scope of Small and Medium Enterprises)

(1) The term "small and medium enterprises prescribed by the Presidential Decree" in Article 4 (1) of the Restriction of Special Taxation Act (hereinafter referred to as the "Act") means enterprises engaged in manufacturing (including business similar to manufacturing business, which are prescribed by the Ordinance of the Ministry of Finance and Economy; hereinafter the same shall apply) and .... The main business, which meet all the requirements of the following subparagraphs (hereinafter referred to as "small and medium enterprises"): Provided, That if the number of regular employees is at least 1,00,000 won, equity capital is at least 1,000 won, or sales amount is at least 1,000

former Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2007)

Article 2 (Scope of Small and Medium Enterprises)

Enforcement Decree of the Income Tax

Article 31 (Scope of Manufacturing Businesses)

In applying the provisions concerning business income pursuant to Article 19 of the Act, in the following cases, it shall be deemed the manufacturing industry pursuant to the provisions of Article 19 (1) 4 of the Act:

2. Where entrusting other manufacturers to do the manufacturing instead of directly manufacturing by himself, and where the following requisites are satisfied:

(a) If he personally plans (including the idea, design, sample making, etc.) the product to be manufactured;

(b) If he manufactures the product under his own name; and

former Restriction of Special Taxation Act (amended by Ordinance of the Ministry of Finance and Economy No. 504 of March 24, 2003) (amended by Ordinance of the Ministry of Finance and Economy No. 504 of April 17, 2006)

Article 2 (Scope of Small and Medium Enterprises)

(1) "Projects prescribed by Ordinance of the Ministry of Finance and Economy" in the main sentence of Article 2 (1) of the Enforcement Decree of the Restriction of Special Taxation Act (hereinafter referred to as the "Decree") means projects for manufacturing products by entrusting other manufacturers to do not directly remaking products, and which meet the following requirements:

(a) If he/she personally plans (referring to the idea, design, sample making, etc.) the product to be manufactured;

(b) If he manufactures the product under his own name; and

Enforcement Regulations of the Restriction of Special Taxation Act (amended by the Ordinance of the Ministry of Finance and Economy No. 504 on April 17, 2004)

Article 2 (Scope of Small and Medium Enterprises)

(a) If he/she personally plans (referring to the idea, design, sample making, etc.) the product to be manufactured;

(b) If he manufactures the product under his own name; and

General Provisions of the Restriction of Special Taxation

4-24 【Scope of Manufacturing Business】

In the application of the provisions of Article 2 (1) of the Decree, where entrusting other manufacturers (limited to domestic enterprises) to do the manufacturing instead of directly manufacturing the products, and the following requirements are met, it shall be deemed that the manufacturing business is operated:

1. He/she shall plan (referring to the idea, design, sample making, etc.) the product to be manufactured in person;

2. If he manufactures the product under his own name; and

3. He shall accept the products, and directly sell them under his own responsibility.

심급 사건

-서울고등법원 2008.10.09.선고 2008누11602

대법원 2009.01.15.선고 2008두19451

참조조문