Seoul Administrative Court-2017-Gu Partnership-70670 (2018.07)

The amount of credit for research and manpower development expenses for doctoral personnel expenses incurred in 2011 shall not be subject to minimum tax.

Since Article 132(1) of the former Restriction of Special Taxation Act does not apply to research and human resources development tax credit for doctoral personnel expenses incurred in 2011, it is eligible for carried-over tax credit.

Article 132(1) of the Restriction of Special Taxation Act

Seoul High Court 2018Nu52817 Revocation of Disposition Rejecting Correction

○ Stock Company

○○ Head of tax office

Seoul Administrative Court Decision 2017Guhap70670 decided June 7, 2018

November 14, 2018

November 28, 2018

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant's rejection disposition against the plaintiff on February 13, 2017 against the plaintiff shall be revoked in the business year 2015.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation, etc. of judgment in the first instance;

The court's explanation on this case is identical to the reasoning of the judgment of the court of first instance (including its attachment, but excluding its attachment, '3. conclusion') in addition to the modification of the corresponding part of the judgment of the court of first instance as follows 2. Thus, it refers to Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Parts to be corrected;

○ 5. The following shall be added below 4 pages:

C) In addition, at the trial of a specific dispute case, the authority to determine the meaning, content, and scope of application of the law or the provision of the law, and the authority to interpret and apply the law directly constitutes an essential substance of the judicial power, and interpreting the law in harmony with the constitutional norm is a major principle of interpretation and application of the law (see Supreme Court Decision 2004Du10289, Feb. 12, 2009).

○ 6 10 o.b.’’, the following shall be added:

(1) The Defendant asserted that the Plaintiff did not incur expenses for tin and doctor’s personnel because of the increase in research and human resources development expenses incurred by the Plaintiff even after the revision of the Restriction of Special Taxation Act. However, the Plaintiff’s expenses for tin and doctor’s personnel appears to be determined by comprehensively taking into account not only tax benefits but also various factors, such as economic situation at the time and expenditure level of competition enterprises, etc. However, if other conditions are the same, it is apparent that the exclusion provision of the minimum tax would act as an increase in the Plaintiff’s expenses for tin and doctor’s personnel. Therefore, it is difficult to avoid the possibility that the Plaintiff’s expenses for tin and doctor’s personnel would have increased much more than the current situation if the exclusion provision of the minimum tax was maintained.

○ 6 The following shall be added to “for a period during which 7 years are allowed”:

○ The following shall be added under the 4th sentence below the nine main sentence:

④ Furthermore, if Article 132 of the revised Restriction of Special Taxation Act applies to the key tax amount in this case and the minimum tax is applied to five years during the carry-over period, it would result in an unreasonable discrimination depending on the contingency that "tax payer who has failed to obtain a tax credit on the expenditure of tin and doctoral degree for the business year 2011 due to the occurrence of loss," and "tax payer who has received a tax credit on the expenditure of tin and doctoral degree for the business year 201 due to the occurrence of net income," among the tax payers who have filed an application for tax credit due to the completion of the expenditure of tin and doctoral degree labor expenses in the business year 201. Accordingly, the minimum tax is not applied to the key tax amount in this case by applying Article 132 of the revised Restriction of Special Taxation Act, not Article 132 of the same Restriction of Special Taxation Act, and Article 132 of the former Restriction of

3. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning. The judgment of the first instance is just with this conclusion, and the defendant's appeal is dismissed as it is without merit.