창업벤처기업 세액감면제도의 벤처기업 확인과 조세특례제한법 제6조 제2항의 해석 : 서울행정법원 2017. 6. 30. 선고 2017구합56933 판결 사안을 중심으로

Article 6 (2) of the Restriction of Special Taxation Act, which stipulates corporate tax reduction or exemption for start-up small and medium-sized enterprises(SMEs) venture businesses, initially stipulated that if a venture business is certified within three years of establishment, the enterprise is entitled to an income tax reduction for four years from the taxable year in which first income accrues. Subsequently, with the revision of Article 6 (2) in 2013, the period subject to reduction or exemption was expanded from four to five years, and the supplementary provisions for the revised regulations stipulated that “applicable to those who have been established, designated or certified after January 1, 2013.” In order to be certified as a venture business, the “requirements for a venture business” must be met in accordance with the Venture Business Act, and an application for certification of a venture business must be made to the head of the confirmation agency. The Enforcement Decree of the Venture Business Act sets that the valid period of the venture business certificate as two years. Therefore, if the validity period expires, it is necessary to go through the same application and evaluation procedures as for a new venture company, and to receive certification of the venture company again. Therefore, it is possible to obtain two certifications of venture companies within three years after starting a business. Accordingly, controversy arose over whether the extended five-year reduction/exemption period can be applied according to the amended law in the case of a company re-certified after January 1, 2013 due to the expiration of the validity period after initial confirmation as a venture business. Under the Special Taxation Act, the tax reduction or exemption for start-up ventures is very effective support for the survival of venture companies, so the effect of the one-year extension of the reduction period due to the revision is significant for venture companies. Since then, there have been several authoritative interpretations of the subject of the amended Act, and the court has ruled that it is in line with the legislative history and purpose to interpret the certification stipulated in the supplementary provisions of the amended Act to mean only “initial certification.” This study discussed problems arising from the revision of the tax reduction and exemption regulations for start-up ventures pursuant to Article 6 (2) of the Special Act. Specifically, this study analyzed the problems of interpreting the ‘certification’ stipulated in the revised Special Act as ‘initial certification’. Even though it is specified as ‘certification’ in the provisions of the Special Act, to limit the interpretation to ‘initial certification’ is to apply the tax law unfavorably to the taxpayer. According to the Venture Business Act, even though two certifications are possible within three years after establishment, the Special Act that fails to distinguish between initial certification and re-certification is a legislative matter that does not take into account the venture business environment in detail. Therefore, the limited interpretation of “certification” is unfair to burden the business taxpayers. In addition, this study presents various cases in which results that do not conform to the principle of tax equity can arise according to court judgment regarding the scope of “certification”. Also, the interpretive errors implied in the judgments of the court precedents are discussed, and through this, it is argued that it is appropriate to strictly interpret the provisions of the issue as it is in the light of the principle of statutory taxation. This study contributes to the tax literature in that it presents a reasonable operation scheme of the tax support system for the development of venture businesses in terms of application and interpretation of the tax law. The corporate tax reduction for start-up venture companies is actually the most useful support system, and is an essential policy for the venture business environment. Therefore, even in the 2017 tax law revision, support for corporate tax reduction and exemption for start-up SMEs has been further strengthened. In addition, from 2021, the Venture Business Act was amended to extend the validity period of venture business certification from two years to three years in order to reduce the practical burden of venture businesses. Despite the continuous revision of each legislature to provide financial support for venture companies, it is questionable whether it is consistent with the purpose of the law to be excluded from the application of the revised Special Act due to the fact that it was confirmed as a venture business in the early stages of establishment through ceaseless efforts. This study is expected to provide an opportunity to reconsider the problems that may be caused by the inadequacy of legislation by presenting various cases in which they are placed in an unfair position in terms of tax benefits due to inappropriate interpretation of the provisions of the law.