[양도소득세등부과처분취소][공1989.12.15.(862),1810]
The case holding that it is taxable object of the transfer income tax on the fact that: (a) while operating a hotel by leasing the underground floor of the hotel with another person for the same business, withdraws from the business relationship and received the price therefor.
If Party A agreed to operate his/her age club as his/her partnership business and operated his/her age club under the name of Party B, it shall be deemed that the right to lease of the said club belongs to the property of the partnership. Therefore, Party A, a partner, has "the status as a tenant of a shop" under Article 44-2 (1) 2 of the Enforcement Decree of the Income Tax Act, and thus, the share constitutes a property subject to capital gains tax. If Party A received money from Party B, who acquired the share while withdrawing from the partnership business, then the status as a tenant of the above age club is transferred to Party B according to his/her share ratio, and the amount that Party A received is in a quid pro quo relationship with the loss of status as the above tenant, and thus, this constitutes "transfer" under the former part of Article 4 (3) of the Income Tax Act. Accordingly, the income accrued therefrom shall be subject to capital gains tax.
Article 4(3) of the Income Tax Act, Article 44-2(1)2 of the Enforcement Decree of the Income Tax Act
Plaintiff 1 and one other
Attorney Cho Hun-hoon
The Director of Gangnam District Office
Seoul High Court Decision 88Gu6445 delivered on April 11, 1989
The appeal is dismissed.
The costs of appeal are assessed against the plaintiffs.
We examine the grounds of appeal.
1. According to the reasoning of the judgment below, on December 1981, Plaintiff 1 agreed to operate the above club with Nonparty 1 as a partner and entered into a lease agreement with Nonparty 1 on the first floor underground of the Plow Tourist Development Co., Ltd., under the name of the tenant with the above non-party 1, who was the non-party 2 and the non-party 2 as a partner, but operated the above club with four persons in the same proportion of shares as the raw materials at the time. After the actual termination of the above agreement on June 19, 1984, the court below recognized the facts that the non-party 1 and the non-party 1 renewed the above lease agreement with the non-party company on the same day and then renewed the lease agreement with the non-party 1, the non-party 1, as well as the non-party 1, the non-party 1, who continued to operate the above club. In light of the records, the court below was justified in finding the above facts of violation of the rules of evidence.
2. If the facts are as determined by the court below, the right to lease the instant nive club belongs to the property of the association. Therefore, the plaintiffs, the members of the association, have "the status as the tenant of a store" as stipulated in Article 44-2 (1) 2 of the Enforcement Decree of the Income Tax Act, and therefore the shares constitute assets subject
The judgment of the court below with the same purport is just and there is no error of law by misunderstanding the legal principles as to partnership.
3. As determined by the court below, if the plaintiffs were to receive the money from the non-party 1 who acquired the shares in the union business relationship at the original time, the status of the tenant of the above age club as the tenant of the above age club is transferred to the above non-party 1 who acquired the shares, and since the amount received by the plaintiffs shall be deemed to be in a quid pro quo relationship with the loss of the status as the tenant, it shall be deemed to constitute "transfer" under the former part of Article 4 (3) of the Income Tax Act, and therefore the income accrued therefrom shall be subject to the transfer income tax.
We affirm the judgment of the court below to the same purport. We cannot accept the argument that the transfer is merely a monetary receipt of the calculation of shares pursuant to Article 719 of the Civil Act.
4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon So-young (Presiding Justice)