(영문) 대법원 2008. 12. 11. 선고 2006두17550 판결

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Title

Purport of claim and appeal

텍스트 조절

글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 대법원 2008. 12. 11. 선고 2006두17550 판결

상장조건부 자산재평가와 관련한 구 조감법부칙 실효당부[국승]

Title

Part of the former Restrictions on Re-Evaluation of Assets Subject to Listing

Summary

Even if the whole revised law does not have a separate provision that the transitional provision of the previous supplementary provision of the law shall continue to apply, if there are circumstances to deem that the transitional provision shall continue to apply, the transitional provision of the previous supplementary provision of the law before the whole amendment shall not be

Related statutes

Special Cases concerning revaluation in case of disclosure of business under Article 56-2 of the former Tax Reduction and Exemption Control Act

Article 23 of the Addenda to the Regulation of Tax Reduction and Exemption Act

Text

The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

The grounds of appeal are examined.

1. Article 56-2 (1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 3939, Nov. 28, 1987; Act No. 4285, Dec. 31, 1990; hereinafter referred to as "former Article 56-2 of the Securities and Exchange Act") provides that "a corporation which intends to list stocks for the first time at the Korea Stock Exchange under Article 88 (1) of the Securities and Exchange Act may conduct revaluation under the Assets Revaluation Act by calculating the first day of each month as the revaluation date notwithstanding the provisions of Articles 4 and 38 of the Assets Revaluation Act: Provided, That where the revaluated corporation fails to list its stocks at the Korea Stock Exchange within 2 years from the revaluation date, the revaluated already conducted shall not be deemed revaluation under the Assets Revaluation Act if it discloses its stocks to the public, it shall be conducted revaluation under the same Act even if it fails to meet the requirements for revaluation under the Assets Revaluation Act, and the amount of revaluation spread after the revaluation date shall not be calculated in accordance with Article 15 (1) of the Assets Revaluation Act.

After that, Article 56-2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285 of Dec. 31, 1990) was deleted and Article 23 of the Addenda of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 4285 of Dec. 31, 1990) was established. Article 23 of the Addenda of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 13202 of Dec. 31, 1990) provides that "If a corporation which has conducted revaluation under Article 56-2 fails to list stocks within the period prescribed by Presidential Decree, the revaluated shall not be deemed revaluation under the Assets Revaluation Act, unless it has listed stocks within the period prescribed by Presidential Decree". Paragraph 2 provides that "where a corporation which has conducted revaluation cancels within the period prescribed by Presidential Decree, it shall report and pay the corporate tax on the income of each business year and the corporate tax base return for the business year in which the revaluation is revoked."

Meanwhile, Article 2 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (wholly amended by Presidential Decree No. 14084, Dec. 31, 1993; hereinafter referred to as the "former Regulation of Tax Reduction and Exemption Act") which was wholly amended by Act No. 4666, Jan. 1, 1994; Article 2 of the Addenda provides that "the amended provisions concerning income tax and corporate tax under this Act shall begin to apply from the taxable year beginning after this Act enters into force," but the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 10135, Dec. 15, 1996; 193; 208, Jun. 13, 198; 196; 203; 1.05, Presidential Decree No. 10658, Dec. 31, 193; 193; Presidential Decree No. 10681, Dec. 16, 1997).

2. In the case of a partial amendment of a law, the transitional provisions in the Addenda of the previous law do not automatically become null and void unless there is a separate provision that the amendment or deletion shall be made. However, in the case of a complete amendment of a law, the provisions in the previous law as well as the provisions in the addendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendendend by the previous law.

3. In light of the above legal principles, the provisions of the Addenda of this case were deleted by the former Article 56-2, which is a special provision on asset revaluation, and the effect of the existing asset revaluation at the time of listing or listing (Paragraph 1) of the corporation with respect to the corporation which has already conducted asset revaluation under the above provision, and the effect of the cancellation of the asset revaluation (Paragraph 2). Since the former Act on the Regulation of Tax Reduction and Exemption for the whole amendment does not stipulate any transitional provision on the application of the supplementary provision of this case to the Presidential Decree, it seems that the former Act on the Regulation of Tax Reduction and Exemption for the Regulation of Tax Reduction and Exemption for the Special Cases Concerning Asset Revaluation does not have any separate transitional provision on this matter. However, if the effectiveness of the provisions of the supplementary provision of this case is lost as of January 1, 1994 due to the implementation of the wholly amended Regulation of Tax Reduction and Exemption Act, it is difficult to view the existing provision on asset revaluation to be effective by the previous Article 56-2 of the Act on the Regulation of Tax Reduction and Exemption for the Tax Reduction and Exemption for the Tax Reduction and Exemption for the Tax.

4. If so, the supplementary provision of this case should be deemed to be a "special circumstance" that is not effective even if the wholly amended Regulation of Tax Reduction and Exemption Act was enforced.

Nevertheless, the court below held that the Act on the Regulation of Tax Reduction and Exemption, which was wholly amended without examining the aforementioned various circumstances, does not have a separate provision that the provisions of the Addenda of this case continue to apply. Thus, the court below erred by misapprehending the legal principles as to the invalidation of the previous Act at the time of the whole amendment of the Act, which affected the conclusion of the judgment, and the grounds for appeal pointing this out are with merit.

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Seoul High Court 2006Nu4297 ( October 12, 2006)]

Text

Revocation of the first instance judgment;

The disposition of imposition of KRW 70,767,836,129 on April 16, 2004 imposed by the Defendant against the Plaintiff shall be revoked in entirety as to each corporate tax, defense tax, special rural development tax, and assets revaluation tax recorded in the principal tax column for each business year.

All the costs of lawsuit shall be borne by the defendant in the first and second instances.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

The following facts are not disputed between the parties, or each of the following facts is acknowledged by comprehensively taking account of Gap evidence 1-1 through 10, Eul evidence 2-1 through 13, Eul evidence 1-2, Eul evidence 2-1 through 13, Eul evidence 2-1, 2, 3-2, Eul evidence 3-1 through 11, Eul evidence 4, 5-1 through 12, Eul evidence 6-1 through 11, Eul evidence 7-1 through 8-1, Eul evidence 8-1 through 5, Eul evidence 9, 10-1 through 9, Eul evidence 11-1-5, Eul evidence 12, Eul evidence 13-1 through 9, Eul evidence 14-1 through 17, Eul evidence 15-1, 17, 19-1 through 17, 19-17, 10-1, 17, 19-1, 10-2, and 3-1.

A. On October 1, 1990, based on Article 56-2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285 of Dec. 31, 1990; hereinafter referred to as the "former Regulation of Tax Reduction and Exemption Act"), the Plaintiff Company engaged in oil and petroleum chemical manufacturing business, etc., prepared for stock listing to the Korea Stock Exchange on October 1, 1990, but it was difficult to list the stocks by December 31, 2003, the Plaintiff Company voluntarily revoked the asset re-evaluation on October 1, 2090.

B. The Defendant: (a) calculated corporate tax on income for each business year since 1990 pursuant to Article 23 of the Addenda of the former Regulation of Tax Reduction and Exemption Act (Act No. 4285, Dec. 31, 1990); and (b) did not file a report or pay it together with the tax base of corporate tax for the business year which includes the date of revoking the revaluation, pursuant to Article 23 (hereinafter referred to as “the Addenda clause of this case”); (b) included the depreciation cost appropriated in excess over 173,579,616,95 in deductible expenses; (c) included the depreciation cost of 6,215,574,406 in deductible expenses; (d) included the reduced depreciation cost of 4,581,834,590 won in deductible expenses; (e) calculated the difference between 190-196 and 30-196-196 of the attached Table of the Assets Revaluation Act; and (e) applied the previous revaluation tax rate of 190-19-19-2 of the Assets Revaluation Act.

C. On July 9, 2004, the Plaintiff Company filed an appeal with the National Tax Tribunal on July 1, 2004. On May 10, 2005, the National Tax Tribunal rendered a decision that the amount of penalty tax (additional tax for underreporting and unpaid additional tax) shall not be imposed. Accordingly, on May 25, 2005, the Defendant revoked the disposition of imposition of penalty tax on the part of the above disposition of imposition (hereinafter referred to as “instant disposition of imposition”). The Defendant revoked the disposition of imposition of penalty tax on April 16, 2005 (excluding penalty tax in the disposition of imposition as of April 16, 2004).

2. Whether the instant disposition is lawful

A. The plaintiff company's assertion

(1) The supplementary provision of this case was amended by Act No. 4666 of Dec. 31, 1993 without a separate transitional provision, and went into effect on Jan. 1, 1994. Based on the delegation of the supplementary provision of this case invalidated, the former Enforcement Decree of the Act on the Regulation of Tax Reduction and Exemption (referring to each of the provisions of the Enforcement Decree of the former Act on the Regulation of Tax Reduction and Exemption (amended by the relevant Acts and subordinate statutes; hereinafter the same shall apply) and the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 16693 and 17458 of the Enforcement Decree of the Restriction of Special Taxation Act, and all of the provisions of the former Enforcement Decree of the Restriction of Special Taxation Act, which are amended by Presidential Decree No. 16693 and 17458 of the Enforcement Decree of the Restriction of Special Taxation Act) are null and void.

Ultimately, even if the Plaintiff Company cancels the previous asset revaluation on December 30, 2003, the revaluation result under the Assets Revaluation Act remains effective as it is and there is no possibility that the problem of excessive appropriation of depreciation costs and insufficient transfer marginal profits. Therefore, the Plaintiff Company is not obligated to re-calculated corporate tax and return and pay corporate tax pursuant to the supplementary provision of this case. Accordingly, the disposition of this case based on the supplementary provision of this case, which was invalidated, is unlawful.

(2) Even if the supplementary provision of this case is effective at the time of the disposition of this case, the listing period under the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act and each Article of the Enforcement Decree of the Restriction of Special Taxation Act shall not be deemed revaluation under the Assets Revaluation Act, and it shall not be deemed that the excess depreciation costs and the gains from the transfer over-estimated assets based on the revaluation results would result in the inclusion of losses and earnings from the inclusion of earnings in the calculation of losses, regardless of the exclusion period. The former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 13192, Dec. 31, 190; hereinafter the same shall apply) shall not be deemed an exception to the initial date of the national tax assessment period under Article 12-3 (2) 2 and 3 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 13192, Dec. 31, 190; hereinafter the same shall apply).

Therefore, among the disposition of this case, the corporate tax, defense tax, and special rural development tax over the 1990-198 business year expired pursuant to Article 26-2 (1) of the Framework Act on National Taxes (referring to the whole of the amended Framework Act on National Taxes as stated in the relevant Acts and subordinate statutes; hereinafter the same shall apply) and the exclusion period for the imposition of national taxes for the 5-year or 2-year period, and the revaluation tax on assets based on the 5-year asset revaluation as of April 1, 1999 from the date after 90 days from the revaluation date was expired on June 29, 2001.

(b) Related statutes;

It shall be as shown in the attached Form summary of the relationship.

C. Determination

(1) The amendment history of the special provisions on revaluation in the event of the disclosure of the company

(A) Notwithstanding the provisions of Articles 4 and 38 of the Assets Revaluation Act, Article 56-2(1) of the former Tax Reduction and Exemption Control Act provides that a corporation seeking to list stocks at the Korea Stock Exchange for the first time may conduct revaluation under the Assets Revaluation Act by setting the first day of each month as the revaluation date, but that where a corporation which conducted a revaluation of assets fails to list stocks within 2 years from the revaluation date, the assets revaluation already conducted shall not be deemed revaluation under the Assets

However, the former Tax Reduction and Exemption Control Act was amended by Act No. 4285 on December 31, 1990, to eliminate the special system for asset revaluation for stock listing by eliminating the provisions of Article 56-2 of the above Act, and to regulate asset revaluation for stock listing already implemented, Article 56-2 of the Addenda of the above case provides that a corporation which conducts revaluation pursuant to the main sentence of Article 56-2 (1) of the former Tax Reduction and Exemption Control Act shall not be deemed revaluation pursuant to the Assets Revaluation Act only in cases where stocks are not listed within the period prescribed by the Presidential Decree from the date of revaluation, and Article 56-2 (2) provides that where a corporation which conducted revaluation cancels its revaluation, it shall be reported and paid along with the tax base return for the business year in which the date of revocation falls.

(B) The former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 13202, Dec. 31, 1990; Presidential Decree No. 14084, Dec. 31, 1993; Presidential Decree No. 14084, Dec. 31, 1993) newly established Article 66 and set the "period prescribed by Presidential Decree" as five years, and thereafter, the above period was eight years (Article 109 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act before amended by Presidential Decree No. 15197, Dec. 31, 1996); 10 years (Article 109 of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act before amended by Presidential Decree No. 15976, Dec. 31, 1998); Article 109 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 135138, Oct. 163, 2001, 2001).

(C) Meanwhile, the former Regulation on Tax Reduction and Exemption Act was amended by Act No. 4666 on December 31, 1993 and enforced on January 1, 1994. Unlike the former Regulation on Tax Reduction and Exemption Act prior to the amendment, the assets revaluation special system for stock listing was not adopted, and there was no particular provision to delete and abolish the transitional measures for the instant supplementary provisions to regulate the asset revaluation for stock listing already implemented.

(2) Whether this case’s supplementary provision becomes invalid

In the case where the amended Act is a specialized amendment, it is the same as the repeal of the existing Act and the enactment of a new Act, and thus, the provisions of the Addenda as well as the provisions of the previous Act shall be deemed extinguished, barring any special circumstance, the transitional provisions of the previous Act shall also become null and void, barring any special circumstance. However, the same shall not apply in a case where a special provision exists that the previous Act shall continue to apply with respect to the transitional provisions of the previous Act or the provisions of the previous Act concerning the previous Act (see, e.g., Supreme Court Decisions 2002Du10780, Jun. 24, 2004; 2001Du168, Jul. 2

Article 12 of the former Regulation of Tax Reduction and Exemption Act, amended by Act No. 4666 of December 31, 1993, provides for transitional measures with regard to matters requiring continuous application among the provisions of the previous Act, Article 13 as to reserve funds, Article 14 as to tax reduction and exemption, Article 15 as to income deduction, Article 16 as to capital gains tax reduction and additional collection, Article 17 as to enterprises subject to industrial rationalization, Article 18 as to enterprises subject to industrial rationalization, and Article 16 as to the EXPO Organizing Committee. On the other hand, Article 18 of the former Regulation of Tax Reduction and Exemption Act continues to apply to this case’s supplementary provisions or has separate transitional provisions replacing Article 56-2 of the former Regulation of Tax Reduction and Exemption Act, and therefore, Article 12 of the Addenda of this case should be deemed to have become null and void as of January 1, 1994.

(3) Whether the Enforcement Decree of the former Regulation on Tax Reduction and Exemption Act and the Enforcement Decree of the Restriction of Special Taxation Act are legitimate

Article 38 of the Constitution provides that "All citizens shall be liable to pay taxes under the conditions as prescribed by Acts," and Article 59 provides that "the items and rates of taxes shall be determined by Acts," and the principle of no taxation without the law provides that "the items and rates of taxes shall be determined by Acts." The principle of no taxation without the law means that the National Assembly, which is a representative organ of the people, should provide for requirements and procedures for exercising tax rights, such as tax requirements and collection procedures, but it does not prohibit specific and individual delegation

On the other hand, Article 75 of the Constitution provides that "Presidential Decrees may issue Presidential Decrees with regard to the matters delegated with specific scope and matters, , , , and matters." Since January 1, 1994, the supplementary provision of this case became invalid, Article 66 of the former Enforcement Decree of the Act on the Regulation of Tax Reduction and Exemption (amended by Presidential Decree No. 13202 of December 31, 1990) and Article 109 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14084 of December 31, 1993) and Article 109 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14084 of Dec. 31, 1993) and Article 109 of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act or Article 109 of the Restriction of Special Taxation Act (amended by Presidential Decree No. 14084 of Jan. 1, 1994, 2094). 208).

(4) Whether the instant disposition was lawful

As such, Article 138 of the Enforcement Decree of the Restriction of Special Taxation Act, which was amended by Presidential Decree No. 17458, Dec. 31, 2001, is null and void from the beginning. Thus, even if the Plaintiff Company cancelled its asset revaluation on Oct. 1, 1990 on Dec. 30, 200, the revocation does not take effect. Meanwhile, the Plaintiff Company did not conduct revaluation pursuant to the supplementary provision of this case, but conducted asset revaluation pursuant to Article 56-2 (1) of the former Tax Reduction and Exemption Act, and the effect of the abolition of the supplementary provision of this case is retroactively short of the effect. Thus, even if the supplementary provision of this case becomes null and void, the asset revaluation of the Plaintiff Company on Oct. 1, 1990, which was made pursuant to the law that continued to exist as of Dec. 31, 2003.

Article 56-2 (1) of the former Regulation of Tax Reduction and Exemption Act provides that the re-evaluation, unless stocks are listed in the Korea Stock Exchange within two years from the date of re-evaluation, shall not be deemed re-evaluation under the Assets Revaluation Act, but in the case of the Plaintiff Company, the re-evaluation of assets shall not be deemed to have been invalidated under the same provision. From October 1, 1990, the date of re-evaluation of the Plaintiff Company’s assets, the two-year period under Article 56-2 (1) of the former Regulation of Tax Reduction and Exemption Act, prior to the expiration of the two-year period under Article 23 (1) of the Addenda of this case, the condition of cancellation of the re-evaluation of assets has already been changed to five years under Article 56-2 (1) of the former Regulation of

Ultimately, the Plaintiff Company’s re-evaluation of its assets on October 1, 1990, which was made under Article 56-2(1) of the former Regulation of Tax Reduction and Exemption Act, shall be deemed to have become final and conclusive by the invalidation of the supplementary provisions of this case, which stipulate the conditions for the cancellation under the former Regulation of Tax Reduction and Exemption Act, as amended by Act No. 4666, Dec. 31, 1993, while the conditions for cancellation have not been completed.

Therefore, the taxation requirement of the instant disposition, such as excessive appropriation of depreciation costs due to the cancellation of the Plaintiff Company’s re-evaluation of its assets on December 30, 2003 or insufficient appropriation of gains from the transfer of assets, etc., does not occur. The instant disposition, based on the premise that the revocation of the re-evaluation of the Plaintiff Company’s assets is valid, is unlawful.

(5) Determination of the Defendant’s assertion

First of all, the defendant asserts that if the corporation does not impose a tax on the corporation revoking the asset re-evaluation on the ground of the invalidation of the supplementary provision of this case, it would result in unreasonable favorable treatment of the plaintiff company compared to the corporation that reported and paid the corporate tax, etc. faithfully on the basis of the cost principle without the asset re-evaluation, which goes against the principle of tax feasibility and the principle of

On the other hand, since the Plaintiff Company may be distinguished from any other corporation in the course of evaluating its assets, it cannot be deemed as going against equity by being treated differently under tax laws, and even if there arises a problem of equity as alleged by the Defendant in domestic affairs, such circumstance alone does not change the legislative defect. The principle of no taxation without law, which provides a legal requirement, is required under the Constitution. Although the supplementary provision of this case is invalidated without a transitional provision and left behind the enforcement decree, it can be deemed as a legislative error. However, under the principle of no taxation without law, the omission of taxation due to a clerical error is bound to be borne by the guarantee of legal stability and predictability, and even if it can be said that there is a special circumstance that does not extinguish the validity of the supplementary provision of this case.

In addition, the defendant's company's disposal of assets on October 1, 1990 until December 30, 203, under the premise that the supplementary provision of this case is valid until the revaluation is revoked, and the corporate tax base with excessive depreciation costs and understating the transfer difference is returned and paid, and the defendant also accepts it, thereby enjoying enormous profits in taxation. The defendant's assertion that the supplementary provision of this case has already been invalidated on January 1, 1994 after the revaluation of assets was revoked is contrary to the principle of good faith. However, the effect of the supplementary provision of this case is null and void due to erroneous or inadequate legislation, and even if the plaintiff company had cancelled its revaluation, it cannot be attributed to the plaintiff's authority for reasons attributable to the plaintiff company, and even if it did not go against the principle of good faith and trust, it cannot be viewed that the plaintiff company's previous act cannot be viewed that it had been invalidated due to the violation of the principle of no taxation without law or the principle of no taxation without law.

3. Conclusion

Therefore, since the plaintiff's claim of this case is well-grounded, it is unnecessary to determine the remaining arguments, and the judgment of the court of first instance is unfair in conclusion, and thus it is so revoked, and all of the plaintiff's claims are accepted. It is so decided as per Disposition.

Details of imposition

Business year

Items of Taxation

Date of Disposition

Amount of tax

*Notification Tax Amount

Principal Tax

Additional Tax

1990

Corporate Tax

April 16, 2004

15,255,384,750 won

5,862,608,336 won

9,392,776,421

Defense Acquisition Tax

1,758,782,500 won

1,465,652,084 won

293,130,416 won

1991

Corporate Tax

64,873,515,410 won

26,035,733,598

38,837,781,819 won

1992

〃 4

32,299,225,390 won

13,525,978,975 won

18,773,246,421 won

1993

〃 4

18,853,342,030 won

8,292,020,910 won

10,561,321,129 won

1994

Corporate Tax

10,046,092,740 won

4,636,395,609 won

5,409,697,140 won

Special rural development tax

318,752,190 won

289,774,726 won

28,977,472 won

196

Corporate Tax

2,473,019,270 won

1,273,715,770 won

1,199,303,502 won

1998

〃 4

3,748,005,410 won

2,173,545,811

1,574,459,607 won

199

Corporate Tax

9,384,290 won

4,841,098 won

4,543,201 won

Revaluation tax of assets

7,207,569,210 won

7,207,569,212

Total

156,843,073,190 won

70,767,836,129 won

86,075,237,128

* The notified tax amount is the amount that reduces less than 10 won by aggregating the principal tax and the additional tax.

Related Acts and subordinate statutes.

Article 56-2 of the former Regulation of Tax Reduction and Exemption Act

Before December 31, 1990 (amended by Act No. 4285 of Dec. 31, 199)

(1) A corporation which intends to list stocks first on the Korea Stock Exchange under Article 88 (1) of the Securities and Exchange Act may, notwithstanding the provisions of Articles 4 and 38 of the Assets Revaluation Act, conduct the revaluation of stocks by treating the first day of each month as the revaluated date: Provided, That where a corporation which conducts the revaluation fails to list stocks on the Korea Stock Exchange within 2 years from the revaluation date, the revaluated already conducted shall not be regarded as the revaluation under

(2) The provisions of the main sentence of paragraph (1) may also apply mutatis mutandis to a case where a corporation whose stocks are listed on the Korea Stock Exchange for the first time during the period from January 1, 1987 to December 31, 1988 conducts revaluation under the Assets Revaluation Act not later than December 31, 1989: Provided, That the same shall not apply to a corporation which conducted revaluation under the main sentence of paragraph (1).

Article 56-2 Deleted.

Article 23 of the Addenda to the Public Disclosure Act (amended by Act No. 4285 of Dec. 31, 1990).

(1) Any corporation which conducted revaluation before this Act enters into force under the provisions of the main sentence of Article 56-2 (1) shall not be considered as revaluation under the Assets Revaluation Act only when stocks are not listed on the Korea Stock Exchange within the period prescribed by the Presidential Decree from the revaluation date, notwithstanding the provisions of the proviso of the

(2) Where a corporation which has conducted the revaluation under paragraph (1) fails to transfer all or part of the revaluation reserve of the relevant assets to the capital, it may cancel the revaluation within the period under paragraph (1) from the date of revaluation. In this case, the relevant corporation shall re-calculated the corporate tax (including the defense tax imposed by adding additional tax and corporate tax) on the income for each business year, and report and pay it in addition to the report of the tax base of the corporate tax for the

○ amended by Act No. 4666 of Dec. 31, 1993

A specialized amendment does not have a provision corresponding to Article 23 of the Addenda of the previous Act.

Article 66 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (Special Cases concerning Asset Revaluation)

"Period prescribed by Presidential Decree" in Article 23 (1) of the Addenda to the Act on the Regulation of Tax Reduction and Exemption (amended by Presidential Decree No. 14084 of December 31, 1993) among Article 4285 of the Act on the Regulation of Tax Reduction and Exemption (amended by Presidential Decree No. 14084 of December 31, 1990) means five years.

Article 23 (1) of the Addenda to the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15197 of Dec. 31, 1996) of the Enforcement Decree of the former Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15197 of Dec. 31, 1996) refers to eight years.

Article 109 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15976 of Dec. 31, 1998) "the period prescribed by Presidential Decree" in Article 23 (1) of the Addenda to the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15976 of Dec. 31, 1998) means 10 years.

Article 138 of the Enforcement Decree of the Restriction of Special Taxation Act (Special Cases concerning Asset Revaluation)

"Period prescribed by Presidential Decree" in Article 23 (1) of the Addenda to the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 16693 of Jan. 10, 200) means 11 years.

Article 138 of the Enforcement Decree of the Restriction of Special Taxation Act (Special Cases concerning Asset Revaluation)

"Period prescribed by Presidential Decree" in Article 23 (1) of the Addenda to the Act on the Regulation of Tax Reduction and Exemption (amended by Presidential Decree No. 17458 of Dec. 31, 2001) means 13 years.

Article 138 of the Enforcement Decree of the Restriction of Special Taxation Act (Special Cases concerning Asset Revaluation)

"Period prescribed by Presidential Decree" in Article 23 (1) of the Addenda to the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 17458, Dec. 31, 2001) means the period until December 31, 2003.

○ Income for each business year under Article 9 of the Corporate Tax Act

Amended by Act No. 5581 of Dec. 28, 1998)

(1) The income of a domestic corporation for each business year shall be the amount obtained by deducting the total amount of losses which falls or comes to fall under the business year from the total amount of earnings which falls or comes to fall under the business year.

(2) The term "gross income" in paragraph (1) means the amount of earnings generated by transactions which increase the net assets of the concerned corporation, except for capital input or financing and those provided for in this Act.

(3) The term "deductible expenses" in paragraph (1) means the amount of losses incurred by transactions which reduce the net assets of a corporation, except as otherwise provided for in this Act, such as refund of capital or shares, appropriation of surplus funds, and transactions

Article 16 (Non-Inclusion in Gross Income)

Before the amendment by Act No. 4803 of Dec. 22, 1994, the pertinent provision was amended by Act No. 4165 of Dec. 31, 1990, but subparagraph 5 was not amended)

(1) The following earnings shall not be included in the gross income for the concerned business year of a domestic corporation in calculating the income amount for each business year:

5. Revaluation spread under the Assets Revaluation Act;

Article 15 (Non-Inclusion in Gross Income)

The pertinent provision was amended by Act No. 5533 of Apr. 10, 1998, and No. 5418 of Dec. 13, 1997, but No. 5 was amended.

(1) The following earnings shall not be included in the gross income for the concerned business year of a domestic corporation in calculating the income amount for each business year:

5. Marginal profits from the evaluation of fixed assets (including any marginal profit from revaluation under the Assets Revaluation Act): Provided, That this shall not apply to cases prescribed by the Presidential Decree;

Article 15 (Non-Inclusion in Gross Income)

Amended by Act No. 5581 of Dec. 28, 1998)

(1) The following earnings shall not be included in the gross income for the concerned business year of a domestic corporation in calculating the income amount for each business year:

5. Marginal profits from the evaluation of fixed assets (including the revaluation spread under the Assets Revaluation Act, but excluding the land revaluation spread under the provisions of Article 13 (1) 1 of the same Act): Provided, That this shall not apply to cases prescribed by the Presidential Decree;

Article 18 of the Corporate Tax Act (Non-Inclusion of Evaluation Marginal Profit)

The amendment of the relevant provision by Act No. 6558 of Dec. 31, 2001 was made, but subparagraph 1 was not amended.

The following profits shall not be included in gross income in calculating the income amount of a domestic corporation for each business year:

1. Marginal profits from the evaluation of assets: Provided, That this shall not include marginal profits from the evaluation under the provisions of each subparagraph of Article 42 (1);

○ Article 60 of the Corporate Tax Act:

(1) A domestic corporation liable to pay taxes shall, under the conditions as prescribed by the Presidential Decree, report the tax base and tax amount of corporate tax on income for the concerned business year to the head of the competent tax office.

○ Article 12 of the Enforcement Decree of the Corporate Tax Act: Definition of Benefits and Losses

Before December 31, 1994 (amended by the Presidential Decree No. 1448 of Dec. 31, 1994)

(1) The term "profit" in Article 9 (2) of the Act means the matters listed in the following subparagraphs, except as provided for in the Act and this Decree:

3. The amount of assets transferred;

5. Assets evaluation marginal profit;

(2) "Loss expenses" in Article 9 (3) of the Act means the expenses enumerated in the following subparagraphs, except those prescribed by the Act and this Decree:

5. Depreciation costs of fixed assets;

○ Article 12 of the Enforcement Decree of the Corporate Tax Act: Definition of Benefits and Losses

Before December 31, 1998 (amended by Presidential Decree No. 15970 of Dec. 31, 199)

(1) The term "profit" in Article 9 (2) of the Act means the matters listed in the following subparagraphs, except as provided for in the Act and this Decree:

3. The amount of assets transferred;

5. Assets evaluation marginal profits (limited to the revaluation spread under the Assets Revaluation Act and marginal profits from the evaluation under the provisions of subparagraphs 10 and (5));

(2) For the purpose of Article 9 (3) of the Act, the term “loss” means those enumerated in the following subparagraphs except as provided in the Act and this Decree (Article 14080 of December 31, 1993, Presidential Decree No. 14446 of December 23, 1994, Presidential Decree No. 14468 of December 31, 1994, Presidential Decree No. 14468 of December 31, 1994, Presidential Decree No. 15564 of December 31, 1997, which was amended by Presidential Decree No. 15564 of December 5, 19

5. Depreciation costs of fixed assets;

Article 11 of the Enforcement Decree of the Corporate Tax Act

Revenues under Article 15 (1) of the Act shall be those provided for in the following subparagraphs, except as otherwise provided for in the Act and this Decree (amended by Presidential Decree No. 17033 of Dec. 29, 2000, but subparagraphs 2 and 4 have not been amended):

2. The amount of transferred assets (including one’s own stocks);

4. Assets evaluation marginal profit;

Article 19 of the Enforcement Decree of the Corporate Tax Act

Losses under the provisions of Article 19 (1) of the Act shall be those as provided in the following subparagraphs, except as otherwise provided for in the Act and this Decree (the relevant provisions were amended by Presidential Decree No. 17457 on December 31, 201, but subparagraph 5 was not amended):

5. Depreciation costs of fixed assets;

○ The date of re-evaluation of Article 4 of the Assets Revaluation Act.

(1) The basic date of revaluation pursuant to the provisions of this Act (hereinafter referred to as the "evaluation date") shall be the date falling under any one of the following subparagraphs:

1. Corporation: The date on which March, June, or September respectively commences from the beginning date of each business year or each business year; and

2. Individuals: January 1, April 1, July 1, or October 1 of each year.

(2) Any corporation which intends to effect a merger as prescribed by the Presidential Decree may re-evaluation on the first day of each month after re-evaluation.

○ Scope of assets re-evaluation under Article 5 of the Assets Revaluation Act

(1) A corporation and a business operator under the provisions of Article 28 of the Income Tax Act may conduct revaluation of assets falling under any of the following subparagraphs, which belong to the relevant business as of the date of revaluation, under the conditions as prescribed by this Act: Provided, That this shall not apply to the assets, etc. owned for

1. Fixed assets that can be depreciated under the Corporate Tax Act;

2. Land acquired on or before February 31, 1997.

○ Tax Rate Article 13 of the Assets Revaluation Act

(1) Revaluation tax shall be the sum of the amounts calculated by applying the following tax rates to the amount which forms the tax base under Article 12:

1. With respect to the tax base equivalent to the revaluation spread of land under Article 5 (1) 2 (excluding the land acquired before December 31, 1983, which has not been revaluated since January 1, 1984, in case where the land is revaluated for the first time after January 1, 1984), 1/100 of the tax base;

2. For assets other than those under subparagraph 1, 3/100 of the tax base as tax rate corresponding to the revaluation spread.

○ Report on the revaluation of Article 15 of the Assets Revaluation Act

(1) This Act shall apply only where a person who has conducted revaluation submits a revaluation report to the head of the tax office having jurisdiction over the place for tax payment, along with a balance sheet, appraisal report, revaluated value and a statement on the revaluation spread and documents attached thereto, within 90 days from the date of revaluation, as prescribed by Presidential Decree: Provided, That this shall not apply where approval for extension of the deadline for filing a report is

○ Restriction on the revaluation of Article 38 of the Assets Revaluation Act

A person who revaluated assets under this Act (amended by Act No. 5531 of Apr. 10, 1998) shall not revaluated assets unless the wholesale price index has increased by 25/100 or more as of the revaluation date: Provided, That this shall not apply to a corporation which intends to effect a merger as prescribed by the Presidential Decree.

Article 21 of the Framework Act on National Taxes

Paragraph 1 was amended by Act No. 4672 of December 31, 1993, and Act No. 4810 of December 22, 1994, but subparagraph 1 and 5 were not amended).

(1) A liability to pay national taxes shall accrue at the following times:

1. For income tax, corporate tax, or land excess profit tax, when the taxable period is terminated: Provided, That for a corporate tax on liquidation income, when the relevant corporation dissolves or merges;

5. For a revaluation tax, when a revaluation of assets is carried out;

Article 21 of the Framework Act on National Taxes

(1) The term "as amended by Act No. 7008 of Dec. 30, 2003"

(1) A liability to pay national taxes shall accrue at the following times:

1. For the income tax or corporate tax, when the taxable period is terminated: Provided, That for the corporate tax on the liquidation income, when the corporation concerned is dissolved (including dissolution due to a division or merger through division) or merged;

5. For a revaluation tax, when a revaluation of assets is carried out;

Article 26 of the Framework Act on National Taxes

The liability to pay national taxes, surcharges, or expenses for disposition on default shall be extinguished in any of the following cases:

2. When the period in which the national tax may be assessed under Article 26-2, expires without any assessment; and

* Reference Data

Criminal Administration Act 2005Guhap19764 ( December 20, 2005)

Text

All of the plaintiff's claims are dismissed.

Litigation costs shall be borne by the plaintiff.

Purport of claim

Reasons

1. Details of the disposition;

B. The Defendant: (a) calculated corporate tax on income for each business year since 1990 pursuant to Article 23 of the Addenda of the former Regulation of Tax Reduction and Exemption Act (Act No. 4285, Dec. 31, 1990); and (b) failed to implement the tax base of corporate tax for the business year which includes the date of cancellation of revaluation; (c) did not include the amount appropriated as excess depreciation costs in the business year from 1990 to 1999; (d) did not include the depreciation costs of KRW 173,579,616,995; (e) added the depreciation costs of KRW 6,215,574,406 to the deductible expenses; (e) applied the amount of KRW 4,581,834,590 to the Plaintiff Company for the calculation of 190 and the amount of KRW 90 to the previous revaluation tax rate of KRW 190; and (e) applied the difference between the depreciation costs and the previous revaluation tax rate of KRW 197, 1963,50.19

2. Whether the instant disposition is lawful

A. The plaintiff company's assertion

(1) The supplementary provision of this case applied by the defendant in the disposition of this case shall be null and void since the former Tax Reduction and Exemption Control Act was amended by Act No. 4666 of Dec. 31, 1993 without any transitional provision, which was enforced on Jan. 1, 1994. Based on delegation of the main provision of this case which was invalidated on Jan. 1, 1994, the former Enforcement Decree of the Tax Reduction and Exemption Control Act (amended by the relevant Acts and subordinate statutes; hereinafter the same shall apply) which provided the period for listing after Jan. 1, 1994, or the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 1693 and 17458 of the Enforcement Decree of the Restriction of Special Taxation Act, and each of the provisions of the Enforcement Decree of the Restriction of Special Taxation Act, which were amended by Presidential Decree No. 1693 and 17458 of the current Enforcement Decree of the Restriction of Special Taxation Act. Accordingly, even if the plaintiff cancels corporate tax based on the previous Assets Revaluation Act, is null and void and void.

(2) Even if this case’s supplementary provision is effective at the time of the instant disposition, the listing period under the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act and each Article of the Enforcement Decree of the Restriction of Special Taxation Act refers to the period during which a corporation which conducted revaluation, regardless of the exclusion period, can list its stocks, in that the depreciation costs excessively appropriated on the basis of the revaluated results and the gains from the transfer of underpaid assets are included in the calculation of losses or earnings from the inclusion in the calculation of losses. Thus, the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 13192, Dec. 31, 1990; hereinafter the same shall apply) is 12-3 (the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 13192, Dec. 31, 199; hereinafter the same shall apply) does not constitute an exception to the initial date of imposition of national taxes under Article 12-3, and thus, the period of imposition of national taxes expires by 20 years or 9 years elapsed.

(b) Related statutes;

It shall be as shown in the attached Form summary of the relationship.

C. Determination

(1) The violation of the principle of no taxation without law

(A) The amendment process of the special provisions on revaluation in case of the disclosure of the company

1) Notwithstanding the provisions of Articles 4 and 38 of the Assets Revaluation Act, Article 56-2(1) of the former Regulation of Tax Reduction and Exemption Act provides that a corporation intending to list stocks at the Korea Stock Exchange for the first time may conduct revaluation under the Assets Revaluation Act by setting the first day of each month as the revaluation date, but where a corporation which has conducted a revaluation of assets fails to list its stocks within 2 years from the revaluation date, the assets revaluation already conducted shall not be deemed revaluation

However, the former Tax Reduction and Exemption Control Act was amended by Act No. 4285 on December 31, 1990, to eliminate the special system for asset revaluation for stock listing by eliminating the provisions of Article 56-2 of the above Act, and to regulate asset revaluation for stock listing already implemented, Article 56-2 of the Addenda of this case provides that, in order to regulate asset revaluation for stock listing, transitional measures for special cases for corporate revaluation shall not be deemed revaluation under the Assets Revaluation Act only when stocks are not listed within the period determined by the Presidential Decree before the enforcement of this Act, for a corporation which has conducted revaluation pursuant to the main sentence of Article 56-2 (1) of the former Tax Reduction and Exemption Control Act prior to the enforcement of this Act, only when the stocks are not listed within the period determined by the Presidential Decree from the date of revaluation shall be deemed revaluation under the Assets Revaluation Act.

2) The former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 13202, Dec. 31, 1990; Presidential Decree No. 14084, Dec. 31, 1993; Presidential Decree No. 14084, Dec. 31, 1993) newly established Article 66 and set the "period prescribed by Presidential Decree" as five years, and thereafter, the above period was eight years (Article 109 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act before amended by Presidential Decree No. 15197, Dec. 31, 1996); 10 years (amended by Presidential Decree No. 15976, Dec. 31, 1998); Article 109 of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act; Article 108 of the Restriction of Special Taxation Act (amended by Presidential Decree No. 13093, Oct. 16, 2000).

3) Meanwhile, the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4285, Dec. 31, 1990) was amended by Act No. 4666 on Dec. 31, 1993 (hereinafter “Special Regulation of Tax Reduction and Exemption Act”) and enforced on Jan. 1, 1994. The Special Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666, Dec. 31, 1993; hereinafter “Special Regulation of Tax Reduction and Exemption Act”), such as the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666, Jan. 1, 1994), did not stipulate any specific measure to remove and abolish the transitional measures to regulate the

(B) Whether the supplementary provision of this case becomes invalid due to the enforcement of the Act on the Regulation of Tax Reduction and Exemption amended in the Special Act

1) The Plaintiff asserts that this case’s supplementary provision was null and void due to the enforcement of the Act on the Regulation of Tax Reduction and Exemption, and the Defendant asserted that this case’s supplementary provision was null and void even at the time of the instant disposition.

On the other hand, when the amended Act is a specialized amendment, it is the same as the abolition of the existing Act and the enactment of a new Act, and the provisions of the Addenda as well as the previous provisions of the former Act shall be deemed to be extinguished. Thus, unless there is a "special circumstance", the transitional provisions of the previous Act shall also become null and void (see Supreme Court Decision 2002Du10780, Jun. 24, 2004).

Therefore, this part of the issue is whether there was a "special circumstance" that the supplementary provision of this case is not invalidated even though the Special Act on the Regulation of Tax Reduction and Exemption was enforced.

2) 보건대, ① 기업공개시의 자산재평가 특례를 규정한 구 조세감면규제법 제56조의2는 법인으로 하여금 기업공개를 유도하기 위하여 정책적으로 법인이 상장을 전제로 자산재평가를 실시하면 이를 자산재평가법에 의한 재평가로 보아 법인세율보다 저율의 자산재평가를 부담하게 함으로써 법인의 조세부담을 경감시켜 주는 것이었는데, 이러한 기업공개시의 자산재평가 특례제도는 구 조세감면규제법이 1990. 12. 31. 법률 제4285호로 개정되면서 위 제56조의2를 삭제하여 폐지되었으나, 다만 종전에 구 조세감면규제법 제56조의2 규정에 의하여 자산재평가를 이미 실시한 법인에 대해서는 이 사건 부칙조항을 마련하여 주식 상장기한의 유예를 허용하되 그 구체적인 기한의 정함은 대통령령에 위임하였고, 이에 근거하여 구 조세감면규제법 시행령(1990. 12. 31. 대통령령 제13202호로 개정된 것) 제66조가 신설되어 주식 상장 유예기간을 재평가일로부터 5년(구 조세감면규제법 제56조의2는 상장기한을 재평가일로부터 2년으로 규정하고 있었다)으로 규정하게 되었다. 따라서 구 조세감면규제법 제56조의2에 근거하여 이미 자산재평가를 실시한 법인은 이 사건 전문 개정된 조세감면규제법 시행일인 1994. 1. 1. 이전에는 위 구 조세감면규제법 시행령 제66조에 따라 재평가일로부터 5년간 주식을 상장할 수 있는 기한이유예되어 있었고, 위 유예기한 동안 조세감면의 혜택을 누리면서 주식 상장을 준비하고 실시할 기대이익을 가지고 있었다 할 것인데(원고 회사는 재평가일인 1990. 10. 1.로부터 5년간이고, 구 조세감면규제법 제56조의 2에 따라 자산재평가를 실시한 타 법인의 경우에도 사정은 유사할 것으로 보인다), 만약 이 사건 부칙조항이 이 사건 전문 개정된 조세감면규제법 시행일인 1994. 1. 1. 실효된다고 한다면 이 사건 부칙조항과 이에 근거한 구 조세감면규제법 시행령이유효한 것으로 믿고 주식상장을 준비해 오던 법인은 주식 상장이 당장 불가능하게 되어, 이는 재평가한 법인을 소급하여 불이익하게 취급하고, 종래 유지되던 법률관계의 안정성과 재평가한 법인의 신뢰를 크게 해치게 된다는 점(이러한 점에서 이 사건 전문 개정된 조세감면규제법의 입법취지가 기존 법령에 자산재평가에 따른 주식 상장 유예기간이 설정되어 있었음에도 이 사건 부칙조항의 효력을 소멸시킴으로써 이를 조기에 종료시키기 위한 것이었다면 오히려 이 사건 부칙조항의 효력을 정지시키는 명시적인 조항을 규정하였어야 할 것이다), ② 이 사건 전문 개정된 조세감면규제법은 그 부칙조항에서 구 조세감면규제법(1990. 12. 31. 법률 제4285호로 개정된 것) 본문 규정 중 일부 규정에 대해서 경과규정을 두면서도 이 사건 부칙조항에 대해서는 경과규정을 두지 않았는데, 이는 이 사건 부칙조항의 근거가 되었던 구 조세감면규제법 제56조의2가 이미 삭제되어 자산재평가 특례제도가 폐지된 이상 자산재평가 특례제도에 대한 경과조치는 규정할 필요가 없었고, 이 사건 부칙조항은 폐지된 자산재평가 특례제도의 한시적인 기한유예규정에 불과하였으며, 그 구체적인 유예기한에 대해서는 이미 위 구 조세감면규제법 시행령 제66조가 이미 별도로 마련되어 있었던 것에서 유래한 것으로 보이는 점, ③ 구 조세감면규제법 제56조의2에서 규정하고 있던 기업공개를 위한 자산재평가의 특례는 통상의 자산재평가와는 달리 주식 상장을 위하여 자산재평가법 제4조, 제38조 등의 규정에도 불구하고 인정되던 특수한 자산재평가라고 할 것인데, 그 근거규정이던 구 조세감면규제법 제56조의2 및 그 폐지 이후의 경과규정이던 이 사건 부칙조항이 모두 폐지되거나 실효된다고 한다면 기존에 구 조세감면규제법 제56조의2 규정에 따라 시행하였던 자산재평가는 자산재평가법에서 규정하고 있는 자산재평가의 요건을 흠결하여 재평가로서 인정을 받을 수 없게 되고, 나아가 구 조세감면규제법 제56조의2 제1항 단서의 규정에 의하면 같은 항 본문의 규정에 의한 기업공개를 위한 자산재평가는 일정 기간내 주식 미상장을 해제조건으로 그 효력이 인정된다고 할 것인 바, 통상의 자산재평가의 요건을 갖추지 못하고 일정 기간내 주식을 상장시키지도 못한 원고 회사가 행한 자산재평가의 경우에는 결국 자산재평가로서의 적법한 효력을 가질 수 없어 그동안 과다계상하였던 감가상각비, 과소계상하였던 자산양도차익 등을 모두 부인당하게 되어 이 사건 부칙항이 실효된다고 하더라도 결국 조세상의 불이익이 발생하게 되는 동일한 점, ④ 구 조세감면규제법 제56조의2에 따라 자산재평가를 실시하였다가 이를 취소한 법인에 대하여 이 사건 부칙조항의 실효를 이유로 과세하지 못하게 된다면 이는 자산재평가를 실시하지 아니한 채 원가주의에 입각하여 성실하게 법인세 등을 신고ㆍ납부한 법인에 비하여 불합리하게 우대하는 결과가 되어 조세실질주의, 조세공평주의에 반하게 된다는 점에 비추어 보면, 이 사건 부칙조항은 이 사건 전문 개정된 조세감면법의 시행에 불구하고 그 효력이 소멸하지 아니할 특별한 사정이 있었다 할 것이어서, 이 사건 부과처분 당시 이 사건 부칙조항은 효력을 유지하고 있었다 할 것이다.

Furthermore, the Plaintiff Company reported and paid the corporate tax base with excessive depreciation costs and understating the transfer difference under the premise that the supplementary provision of this case is valid from October 1, 1990 to December 30, 2003, since the revaluation of assets was conducted on December 30, 2003, and the Defendant also accepted it, thereby enjoying a huge amount of tax benefits. However, the Plaintiff Company’s assertion that the supplementary provision of this case was invalidated on January 1, 1994 is also contrary to the principle of good faith.

(C) Therefore, the Defendant’s disposition of this case is lawful by applying the tax rate of 1/100 under Article 13(1)1-1 of the Assets Revaluation Act, which is not the tax rate of 1/100 under Article 13(1)1-1 of the Assets Revaluation Act, with respect to the 5th asset revaluation conducted by the Plaintiff Company on April 1, 1999, and the tax rate of 1/100 under Article 13(1)2-1 of the Assets Revaluation Act, and applying the tax rate of 3/100 under subparagraph 2-1 of the same Article. The Plaintiff’s assertion that the disposition of this case violates the principle of no taxation without law

(2) The expiration of the exclusion period

(A) According to the provisions of Article 26-2(1) of the Framework Act on National Taxes, corporate tax, defense tax, five years for special agricultural and fishing villages tax, and two years for special agricultural and fishing villages tax, may not be levied after the expiration of the exclusion period. Article 12-3(1)1 of the Enforcement Decree of the Framework Act on National Taxes stipulates that the exclusion period of national tax, which reports the tax base and tax amount on the initial date of the exclusion period, shall be calculated from the following day

Meanwhile, Article 60 (1) of the Corporate Tax Act provides that a domestic corporation liable for tax payment shall report the tax base and tax amount of corporate tax on income for the pertinent business year to the head of the tax office having jurisdiction over the place of tax payment within 3 months from the end of each

(B) As seen earlier, since the supplementary provision of this case remains effective at the time of the disposition of this case as to this case, the plaintiff company was obligated to return and pay the amount of corporate tax at the time of the disposition of this case at the time of the disposition of this case at the time of the disposition of this case. Thus, as the plaintiff company should report and pay corporate tax to the defendant on March 31, 2004 for the tax base and tax amount of corporate tax, defense tax, special rural development tax, and special rural development tax for rural development tax for the business year of 2003 to which the date of revocation of the disposition of revaluation of assets belongs, based on the revaluation of assets conducted on October 1, 1990 pursuant to Paragraph (2) of the supplementary provision of this case as of December 30, 203, the depreciation costs excessively appropriated in the taxable year thereafter, and re-calculated the corporate tax amount on income for each business year after inclusion of the gains so excessively appropriated in the gross income and re-calculated the amount of corporate tax for each business year of this case.

Furthermore, in the disposition of this case, the period of exclusion of revaluation tax should be calculated as of December 30, 2003, when the previous revaluation was not conducted under the Assets Revaluation Act, by cancelling revaluation pursuant to Paragraph (1) of the Addenda to this case. Thus, it is apparent that the revaluation tax of this case was imposed within the exclusion period.

(C) Therefore, this part of the Plaintiff Company’s assertion that each corporate tax, defense tax, special tax for rural development and revaluation tax imposed in the year 1990 to 1998 were unlawful after the lapse of the exclusion period is groundless.

(3) Ultimately, the instant disposition does not contain any error as alleged by the Plaintiff Company.

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.

Details of imposition

Business year

Items of Taxation

Date of Disposition

Amount of tax

*Notification Tax Amount

Principal Tax

Additional Tax

1990

Corporate Tax

April 16, 2004

15,255,384,750 won

5,862,608,336 won

9,392,776,421

Defense Acquisition Tax

1,758,782,500 won

1,465,652,084 won

293,130,416 won

1991

Corporate Tax

64,873,515,410 won

26,035,733,598

38,837,781,819 won

1992

〃 4

32,299,225,390 won

13,525,978,975 won

18,773,246,421 won

1993

〃 4

18,853,342,030 won

8,292,020,910 won

10,561,321,129 won

1994

Corporate Tax

10,046,092,740 won

4,636,395,609 won

5,409,697,140 won

Special rural development tax

318,752,190 won

289,774,726 won

28,977,472 won

196

Corporate Tax

2,473,019,270 won

1,273,715,770 won

1,199,303,502 won

1998

〃 4

3,748,005,410 won

2,173,545,811

1,574,459,607 won

199

Corporate Tax

9,384,290 won

4,841,098 won

4,543,201 won

Revaluation tax of assets

7,207,569,210 won

7,207,569,212

Total

156,843,073,190 won

70,767,836,129 won

86,075,237,128

* The notified tax amount is the amount that reduces less than 10 won by aggregating the principal tax and the additional tax.

Related Acts and subordinate statutes.

Article 56-2 of the former Regulation of Tax Reduction and Exemption Act

Before December 31, 1990 (amended by Act No. 4285 of Dec. 31, 199)

Article 56-2 Deleted.

Article 23 of the Addenda to the Public Disclosure Act (amended by Act No. 4285 of Dec. 31, 1990).

○ amended by Act No. 4666 of Dec. 31, 1993

A specialized amendment does not have a provision corresponding to Article 23 of the Addenda of the previous Act.

Article 66 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (Special Cases concerning Asset Revaluation)

Article 138 of the Enforcement Decree of the Restriction of Special Taxation Act (Special Cases concerning Asset Revaluation)

"Period prescribed by Presidential Decree" in Article 23 (1) of the Addenda to the Act on the Regulation of Tax Reduction and Exemption (amended by Presidential Decree No. 16693 of Jan. 10, 200) means 11 years.

심급 사건

-서울고등법원 2006.10.12.선고 2006누4297

대법원 2008.12.11.선고 2006두17550

-서울고등법원 2009.05.13.선고 2008누37574

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