중소기업 유예제도와 흡수합병에 있어서의 양도소득세율: 대법원 2013. 2. 14. 선고, 2012두17520 판결

Prior to the pronouncement of the decision addressed in this paper,decisions issued by the court of lower instance and the Tax Tribunalwerethe only precedents regarding the issue of whether Article 9(1)ofthe Enforcement Decree of the Framework Act on Small and MediumEnterprises applies to a merger by a small and medium enterpriseunder a grace period in accordance with Article 2(3) of the FrameworkAct on Small and Medium Enterprises through absorption of anothersmall and medium enterprise, as opposed to the situation in which asmall and mediumenterprise merges by absorption of a business entitythat is treated as a small and medium enterprise during the graceperiod. On the basis of the grounds for amendment of Article 9(1) ofthe Enforcement Decree of the Framework Act on Small and MediumEnterprises, the Small and Medium Business Administration and the taxauthorities set forth the interpretation thatwhere an small and mediumenterprise under the grace period merges by absorbing another smalland medium enterprise, the graceperiod becomes invalidated. However, the taxpayer set forth the argument that the grace periodcontinues if a small and medium enterprise under the grace periodmerges by absorption of another small and medium enterprise on the basis of Article 2(3) of the Framework Act on Small and MediumEnterprises, which is the primary law applicable to Article 9(1) of theEnforcement Decree of the Framework Act on Small and MediumEnterprises. The decision by the Supreme Court is significant inthat thiswas the first decision issued to clarify, onthe basis of Article 2(3) of theFramework Act on Small and Medium Enterprises and its regulations,form and purpose,that Article 9(1) of the Enforcement Decree of the Actdoes not apply to small and medium enterprises under a grace periodthat merges by absorption of another small andmedium enterprise.