Article 51 (Calculation of Gross Income Amount)

2. The costs of lawsuit shall be borne by the Plaintiff.

A. From May 2003, the Plaintiff received total of KRW 13,239,735,00 (hereinafter referred to as “a dispute amount”) from a purchaser contractor for the year 2003 as a charge for commemorative team use, and filed a global income tax return on KRW 122,073,722 equivalent to the portion of the year 203 as the amount of income for the year 2003 as the amount of income for the year 203. However, on January 27, 2006, the Plaintiff received a total of KRW 13,239,735,00 from the purchaser contractor for the year 203 as the amount of rental fee for the year 203, and filed a global income tax return on KRW 122,073,722 equivalent to the portion of the year 203.

[Ground of recognition] Unsatisfy, Gap evidence 1, Eul evidence 1

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Despite the fact that the contract entered into between a charnel and a user of this case constitutes the advance payment for 30 years or 20 years, the management period, the contract amount entered into between the said charnel and the user under Article 618 of the Civil Act, the disposition of this case is unlawful as the income amount reverted to the year 2003.

(b) Related statutes;

Income Tax Act

Article 24 (Calculation of Total Amount of Income)

(1) The total amount of the income of a resident shall be calculated on the basis of the total amount received or received in the corresponding year.

(2) In case of paragraph (1), if those other than money are imported, the revenue amount shall be calculated according to the value at the time of transaction.

(3) Matters necessary for the scope, calculation or determination of the total amount of income received or received shall be prescribed by Presidential Decree.

Article 39 (Business Year, etc. to Which Gross Income Amount and Necessary Expenses accrue)

(1) The gross income amount of a resident and the year to which the necessary expenses accrue shall be the year to which the total income amount and the necessary expenses are determined.

(4) Matters necessary for the year in which the total amount of income under paragraph (1) and necessary expenses accrue, the calculation of acquisition value under paragraph (2) and the evaluation of other assets, liabilities, etc. shall

Enforcement Decree of the Income Tax

Article 51 (Calculation of Gross Amount of Income)

(1) In calculating the gross amount of income accruing from real estate rental income, the total amount of the advance tax, divided by the number of months in the contract period, shall be the total amount of income for each year.

(c) Fact of recognition;

(1) From May 2003, the Plaintiff entered into a master agreement (hereinafter “instant agreement”) with a purchaser contractor from around May 2003, and the following are stated in the agreement.

① The instant contract is concluded at the same time as the Plaintiff’s side and the user affix their seals to the contract, and it takes effect upon the user’s full payment of the price and the receipt of the furnal certificate. ② The ownership of the memorial team is on the Plaintiff’s side, and the user’s right to lease is the user, and the user is not entitled to arbitrarily dispose of the right to lease, the establishment of a pledge, etc., but the user is not entitled to do so, and ③ the user shall pay the management fee (500,000 won, a five-year unit, and a five-year unit of

(2) Meanwhile, according to the management rules of the instant charnel, the user shall pay the management expenses not later than five days before the expiration of the management period (five years and thirty years), and if the Plaintiff notified the user of the performance three times within one year from the date of occurrence of the management expenses, but fails to pay it, the Plaintiff’s side shall be deemed to have waived the right to use permanently.

(3) The fee for the use of the instant charnel is calculated by dividing it into the individual group and the couple group by the unit price and quantity. The Plaintiff, after entering into the instant contract, received the total of KRW 13,239,735,000 from the users for the use of the memorial group in 2003 ( KRW 5,00,000, KRW 142,100,000 for June 14, 200, KRW 450,000 for July 450, KRW 435,000 for August 435,000, KRW 60,000 for September 592,60, KRW 9,987,40,000 for October 9, 400, KRW 608,605,00 for the use of the memorial group, KRW 30,00 for May 30, 200 for the management expenses.

[Reasons for Recognition] Evidence No. 3-1, 2, Evidence No. 4, and Evidence No. 2-1, 2

D. Determination

(1) According to Article 24 of the Income Tax Act and Article 51 of the Enforcement Decree of the Income Tax Act, the calculation of the total amount of revenue on each resident’s income shall be based on the total amount of revenue earned or received during the current year, but if a person receives a preferential tax in real estate rental income, the total amount of the amount calculated by dividing the advance tax by the number of months during the contract period

(2) In the case of the instant contract, although the term "right to lease" is used in the contract, the term of "right to lease" is not recognized under the Civil Act, but in principle, the term of the instant contract is less than 20 years. ② The term of the instant contract is not specified, and it is difficult to view it as the term of the instant contract uniformly for 30 years, which is the maximum term of the lease contract under the Civil Act or for 20 years, which is the maximum term of the management fee payment method, and ③ the instant contract is regarded as the waiver of the right to use the permanent contract if the user is notified of the payment of the management fee, and fails to perform it on three occasions. ④ In light of the instant contract as a lease contract, there is no provision on the return of the rent amount for the remainder of the contract period at the early termination, and ⑤ in the case of a charnel, it is reasonable to deem the instant contract as a lease contract under the Civil Act, and rather, it does not constitute a right to use a permanent charnel, and thus the instant disposition to revert the amount of the instant contract to 20 years.

3. Conclusion

Thus, the plaintiff's claim is dismissed for lack of reason.

[Seoul High Court 2007Nu15195 ( November 15, 2007)]

2. The plaintiff shall bear the costs of appeal.

2. If so, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.