Gwangju District Court 2010Guhap2845 ( December 23, 2010)

National Tax Service Review Division 2009-0085 (2010.30)

It is reasonable to see that it falls under the industrial part of the energy use facility, and therefore is subject to tax credit.

The power generation facilities that produce electricity again using the heat generated after the production of electricity in the first place is included in the area of "industry", and the energy use facilities include facilities that generate effective energy, such as steam, hot water, heat or electricity, and so if they meet the requirements of "energy use facilities", they constitute "energy use facilities" and are subject to tax credit for investment in energy-saving facilities.

2011Nu302 Revocation of revocation of disposition of imposing corporate tax

XX Stock Company

The director of the tax office

Gwangju District Court Decision 2010Guhap2845 Decided December 23, 2010

December 8, 2011

January 12, 2012

The judgment of the first instance shall be revoked.

Each disposition of imposition of corporate tax of KRW 2,836,170,480 for the business year 2005 against the Plaintiff on November 1, 2008 and corporate tax of KRW 1,662,98,750 for the business year 2006 against the Plaintiff shall be revoked.

All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Partial citement of judgment of the first instance;

With respect to the background of the instant disposition, the Plaintiff’s assertion, relevant statutes (see attached Form), and facts of recognition, this court’s reasoning is the same as the reasoning stated in the second to fifth to sixth of the judgment of the court of first instance. Thus, this court’s reasoning is acceptable as it is in accordance with Article 8(2) of the Administrative Litigation Act, and Article 420 of the Civil Procedure Act.

2. The judgment of this Court

A. In full view of the following circumstances, the power generation facilities of this case are 1.

B. (1) The term "facilities that generate effective energy, such as steam and hot water, using smoke, waste heat, process, waste heat, and waste gas" in paragraph (2) constitutes "facilities that generate energy".

(1) According to Article 2(3) of the Restriction of Special Taxation Act, the classification of types of business shall be in accordance with the Korean Standard Industrial Classification published by the Statistics Korea. According to the Korean Standard Industrial Classification, "business activities of a company that directly produces electricity using power generation facilities as power generation facilities, nuclear power, hydroelectric power, wind power, solar power, solar power, assistance and other sources of energy" are classified as "business activities of a company that directly produces electricity". Thus, it is reasonable to view the power generation facilities of this case, which produce the two-lane electric power again using heat generated after the production of electricity in a one-lane open space, as facilities belonging

(2) With respect to the concept of 'waste heat' in the attached Table of this case, the laws and regulations such as the Restriction of Special Taxation do not have the definition of 'waste heat', and the prior meaning of 'waste heat' refers to 'waste heat' or 'the other 'the other 'the other 'the other 'the other 'the other', and the 'the 'waste heat boiler' generally refers to the boiler using the remaining heat of the exhaust gas generated from other processes, and 'the 'the other 'the complex power generation' generally refers to the development (the first generation) using the gas generated from the combustion process of the energy (power fuel). After the 'the other 'the other 'the other 'the other 'the other 'the other 'the other 'the other 'the second generation' is the thermal power generation method using the boiler generated from the steam generated from the 'the other 'the other 'the other 'the other 'the 'the other 'the other 'the 'the 'the other 'the 'the 'the other 'the 'the 'the

In light of such circumstances, it is reasonable to view that the term "waste heat" means not only the heat that has to be disposed of without any appearance, but also the remaining heat after performing a specific purpose in other processes. Therefore, the exhaust heat generated after the production of electricity by using a first-laner in the complex thermal power plant of this case shall be deemed to fall under "waste heat". Even if the complex thermal power plant refers to the entire facilities for the second generation of electricity by using steam that is generated after the first generation, it shall not be deemed that the exhaust heat emitted after the first generation is not a "waste heat", and there is no ground to regard the temperature of the waste heat otherwise by reaching 500·C.

(3) In addition, Article 2 of the former Energy Use Rationalization Act and Article 2 of the former Framework Act on Energy (amended by Act No. 931, Jan. 13, 2010; hereinafter the same) provide that facilities using energy, such as factories and places of business, using energy, or facilities using energy, shall be called energy supply facilities, and the facilities installed to produce, convert, transport, or store energy shall be classified into "energy supply facilities." However, the attached Table of this case provides that "facilities generating effective energy, such as steam and hot water by using smoke heat, waste heat, waste heat, or other waste gas, or facilities generating heat or electric power by using "facilities generating heat or electric power" as "facilities collecting energy", even if energy is generated, it can be viewed as "facilities using energy use facilities" under Article 2 of the former Energy Use Rationalization Act even if the electricity facilities in this case constitute "facilities producing energy use" under Article 2 of the former Energy Use Rationalization Act.

In addition, even if "energy utilization facilities" are divided into "energy generation and supply facilities" and "energy generation and supply facilities" and "energy generation and supply facilities" include "energy, essential, street, and integrated energy facilities" as mentioned above, since "energy use facilities" include facilities producing effective energy, such as steam, hot water, heat or electricity by using combustion heat, it shall be deemed as "energy use facilities" if the facilities generating energy do not correspond to "the above boiler, urine, and integrated energy facilities" as stated in the attached Table even if they do not correspond to "the above boiler, urine, and integrated energy facilities", and it is reasonable to view that the power generation facilities in this case constitute "energy use facilities" even if they do not correspond to "energy generation and supply facilities" as stated in the attached Table.

(4) On the other hand, even if the instant power generation facilities are designed in a single form of equipment combining the first generation facilities, in mind, with the aim of enhancing the heat efficiency in the process of power generation, it seems that the exhaust heat generated from the first generation facilities, in the case of simple thermal power generation, is discarded as it is, and the power generation facilities and the instant power generation facilities are separate facilities that can be separated from the facility and function. In addition, if the waste heat generated from the first generation facilities installed only the plastic power generation facilities and installed it for the purpose of using such waste heat for the purpose of increasing the energy efficiency, it appears that the first installation of the plastic power generation facilities would be eligible for tax credit under the Restriction of Special Taxation Act, while interpreting that it cannot be eligible for tax credit from the beginning would seriously go against equity, and only the portion of the instant power generation facilities are removed as the energy use facilities.

B. Therefore, the instant taxation disposition based on a different premise is unlawful without the need to further examine the Plaintiff’s remainder of the assertion (e.g., the principle of small pay and tax, and the principle of good faith).

3. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with different conclusions, and thus it is revoked by accepting the plaintiff's appeal and it is decided to revoke the tax disposition of this case. It is so decided as per Disposition.