Whether the non-approval disposition on the application for approval by an organization deemed a corporation is legitimate

The lawsuit of this case is unlawful because it did not go through the necessary transfer procedure, and there is no evidence to view that the plaintiff's order merely filed an objection or a request for trial against the disposition of this case, and it did not go through the required transfer procedure.

Article 13 of the Framework Act on National Taxes

1. The instant lawsuit shall be dismissed.

2. The cost of the lawsuit is assessed against the ○○○○ (the resident registration number: ○○○○-○○○○○○○○).

The defendant's non-approval disposition against the plaintiff on 13. 2006 as a corporation shall be revoked.

1. Basic facts

A. Establishment, organization, etc. of the Plaintiff’s Order ○○○○○○ Association (hereinafter referred to as “Plaintiff’s Order”).

(1) According to the ○○ Constitution (established around October 2, 1972, which is the highest norm of the Plaintiff’s Order, ○○○○○○○○ was a religious organization established around 1969 and is not a legal entity. (2) According to the Plaintiff’s Order, ○○○○○, an affiliated organization, shall represent the Plaintiff’s Order (Articles 17 and 20), ○○○○○, and the Central ○○○○, an affiliated organization, which shall be the highest decision-making body (Articles 23 and 36), the external affairs of the Plaintiff’s Order shall be carried out in the name of the ○○○○○○○○○○○○ (Articles 24 and 27), and the head of ○○○○○○ shall not be subject to restriction on the term of office (Article 25), and the head of ○○○○○○○○○, a president of the Central ○○○○○○○ Council, which shall be defined as an overall enactment and amendment (Article 28).

(3) Even after being appointed as the president of ○○○○○○○, which is the front line of the Plaintiff’s Order, around May 1969, by Park Jong-dae, on the part of the head of ○○○○, who was appointed as the head of ○○○○○○○, and the establishment of the ○○○○○○○○○○○, the principal of the Plaintiff’s religious group was registered as the representative of the Plaintiff’s religious group on various public records, such as business registration and real estate registration, while maintaining his position. While the head of ○○○○○○○ was originally located in the ○○○○○○○○○○○○○, but around October 2, 1993, he moved the head of the ○○○○○○○○○○○, which was located in the ○○○○○○○○○○○○○○○○○, the head of the ○○○○○○○○○.

(4) Around August 15, 1995, Park○○ changed the term “the term “the term “the term “the term”, a person in charge of managing each seal, to the term “the president”, and appointed the ○○○ to the president of the ○○○○○○○○○, the ○○○○○ to the president of the ○○○○○○○○○○○○○○○, and the ○○○○○○ to the president of the ○○○○○○○○○○○○ located on the ○○○○○○○○○○○○, and the ○○○○○○○○○○ to the third ○○○○○○○○○, including this, shall not participate in the affairs other than the management of the seal he has assigned to the ○○○○○ and other third ○○○○○○, a director of the ○○○○○○○ branch.

(5) 박○○은 위와 같이 3곳의 도장에 원장을 새로 임명하면서 경○○에 대하여 "나와 몇 살 차이밖에 아니다. 이제부터 자유롭게 둘란다", "나이도 먹고 했으니 들던 날던 상관없다", "나이가 있으니 자유롭게 놔둬라"라는 등의 말을 하였다.

(6) Since October 15, 1995, since 008, the "Director" column was lost in the final resolution column of various slips, such as the expenditure resolution of the head of the ○○ Headquarters, and instead, the "Director" column was created. Since around that time, the head of ○○○ has given approval to the "Director" column.

(7) Even after being appointed as the president of the ○○○ Headquarters, the head of the ○○ Headquarters did not work in the office of the head of the ○○ Headquarters and did not work in the office of the former head of the ○○ Headquarters, and the head of the ○○○○○ was dead without designating the former head of the ○○ Headquarters on January 23, 1996 among the elderly who was in a sick state.

(8) Even after October 15, 1995, the representative of the Plaintiff Religious Order’s business registration was maintained as it is. On June 07, 1999, ○○○ changed the representative of the Plaintiff’s business registration to three persons, including himself, ○○○, and Jeon○○, but voluntarily restored to its original state upon the port of ○○○○. On August 26, 1999, ○○ changed the name of the representative of the Plaintiff’s business registration under the name of ○○○ and Jeon○○○, but the competent ○○○○○○ was authentic upon receiving the petition from the ○○○○, and on September 09, 199.

B. Lawsuit on the representative of the Plaintiff’s Order

(1) The head of ○○○○○○○ Branch (the head of ○○○○○○○○○○ Branch) filed a lawsuit against ○○○○○ Branch of ○○ District Court 2000 Gohap10329, which states that “the head of ○○○○○○○○○○○○○○○ Branch of ○○○○○ Branch of ○○○○ Branch of ○○○○○ Branch of ○○○○ Branch of ○○○○○○ Branch of ○○○○○○○○○○○ Branch of ○○○○○○○ Branch of ○○○○○○○○ Branch of ○○○○ Branch of ○○○ Branch of ○○○○○ Branch of ○○○○○ Branch of ○○○ Branch of ○○○ Branch of ○○○ Branch of ○○ Branch of ○○ Branch of ○○○ Branch of ○○ Branch of ○○○○○ Branch of 2002.”

(2) ○○○ and Gyeong○○ et al., who are dissatisfied with the above judgment, appealed each by the Supreme Court’s ○○○○○○○○○○, ○○○○○○○ (Counterclaim), and ○○○○○○○ (Intervention). The Supreme Court reversed the part of the judgment of the lower court on January 28, 2005, and remanded that part to ○○○○○ High Court. The Supreme Court held in the judgment that “In addition to the legal status of ○○ in the final judgment of the Plaintiff, it is reasonable to deem the ○○○○ as the representative of the Plaintiff’s final judgment independent of the legal status of ○○○○○○ as the managing body and the representative body of the Plaintiff’s final judgment, and that the legal representative of the Plaintiff’s final judgment should not be deemed to be the head of ○○○○○○.”

(3) On December 12, 2006, the ○○ High Court dismissed the part of the independent party's claim against ○○○○○○○ on the main lawsuit, ○○○○○○○○○○○○, ○○○○○○○○○○○, and ○○○○○○○○○○○○○○○○○○○○○○○○, and the main counterclaim of ○○○○○○○○, and the preliminary counterclaim that was instituted only in the lawsuit, (i) and (ii) dismissed all the claims of the independent party against ○○○○○○○○○○○○○○○○○, who was not appointed the ○○○○○○○ to the ○○○○○○○○○○○○○○○○○○○○○○○○, and (ii) was not implicitly dismissed from office from the office of the head of the ○○○○○○○○○, which had no authority to appoint the ○○○○○○○○.

(4) As to this, this appeal was filed by ○○○○○, ○○○○○, ○○○○○, and ○○○○○○○, respectively, as a substitute corporation, but the Supreme Court dismissed each appeal on December 21, 2006. However, the Supreme Court pointed out in the judgment that, even if ○○○ does not have the head of ○○○○○, from the time ○○○○ was dismissed by ○○○○○○, the part of the appeal that “the president of the Central ○○○○○○○○ shall represent the Plaintiff’s Order and represent the Plaintiff’s Order until the death of ○○○○○○, and, in accordance with the order of acting on behalf of the Plaintiff○○○○○○○○○, from the time ○○○○ died, it is inappropriate for the Plaintiff to represent the Plaintiff’s Order of Representation○○○○ to cause confusion with the representative of a religious law.

C. Circumstances of the instant disposition

(1) On the other hand, at the temporary central ○○○○○○○ conference convened on January 05, 2006, 25 members were present at the meeting of 25 members, the name of the organization was decided to be the name of the Defendant as ○○○○ Council, and the representative was 'Gang○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○,

(2) On January 06, 2006, the Plaintiff Order filed an application with the Defendant for approval of an organization which is deemed a juristic person with its principal place of business as 'Gangdong ○○-dong ○○○○○-dong ○○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

(3) On Oct. 10, 2006, the Defendant approved the Plaintiff’s Order as a “organization deemed a corporation” pursuant to Article 8(3) of the Enforcement Decree of the Framework Act on National Taxes, and granted a unique number (○○-○-○○○○○○○○○) under Article 8(2) of the Enforcement Decree of the Value-Added Tax Act, and issued a notice of approval. In addition, the Defendant designated the Gangwon-○ as a person performing the duty of national tax pursuant to Article 13(6) of the Framework Act on National Taxes as a person performing the duty of national tax and issued a notice of designation as a person performing the duty of national

(4) On January 10, 2006, the defendant notified the head of ○○○ Office of the above approval that "after reviewing the application for approval of an organization deemed a corporation, the documents were insufficient and the approval was omitted, but the approval was stated by mistake, but the detailed approval was revoked immediately, but the detailed approval was revoked by closure of business, and the detailed request for deletion was requested."

(5) After that, on January 13, 2006, the defendant issued a non-approval notice to the end group of the plaintiff [the plaintiff's end group of the plaintiff was delegated to the plaintiff's end group with the application affairs, and the other party to the disposition of this case is the plaintiff's end group] on the part of the plaintiff's end group [the other party to the disposition of this case is the plaintiff's end group] and "the organization of the same name (the end group ○○) belongs to ○○○-dong, ○○○, and currently is under dispute over power of representation (Seoul High Court 2005Na19943, etc.). Thus, the application for approval of an organization deemed as a corporation by Gangwon-○, a party to the dispute over power of representation, cannot be approved" (hereinafter referred to as "disposition of this case").

(d) Appeals, etc.;

(1) On January 19, 2006, Gangwon-do Governor appealed against the instant disposition and filed an objection against the Defendant (Evidence 5) (the name column of the applicant is written in the name column of the applicant, ○○○○○○○○○○○○○○○○○○○, and ○○○○○○○○○○○○○○○ in the business registration number column). The name of the applicant’s signature and seal is written in the applicant’s signature and seal column, and the seal of the Plaintiff’s head of Gangwon-do○○○○○○○○○○○○○○○○○○ is affixed next thereto. The applicant’s name and resident registration number are deemed written in the applicant’s column, and the Defendant dismissed the said objection on March 27, 2006 [the applicant’s written decision (Evidence 6)].

(2) On April 24, 2006, ○○ filed an appeal with the National Tax Tribunal. However, the National Tax Tribunal dismissed the appeal (Evidence 7) on June 30, 2006 (the claimant column of the appeal (Evidence 7) includes the name and resident registration number of the person who is Gangwon○, the petitioner’s name and resident registration number, and the petitioner’s signature and seal in the column of the signature and seal of the claimant, and the petitioner of the decision (Evidence 11 is written on the side of the appeal).

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 to 4, Eul 2 to 12 evidence, and the purport of the whole pleadings

2. Related statutes;

It is as shown in the attached Form.

3. The plaintiff's assertion

A. On November 1, 1995, ○○○ was appointed as the president of the Plaintiff Religious Order’s head of the ○○○○○○○○○○, and thus, is a legitimate representative of the Plaintiff Religious Order. The instant disposition was unlawful since it was erroneous that such a mistake was made.

B. The Plaintiff’s Order has a provision on the organization and operation as an organization, and was appointed by Gangwon○’s Provisional Central ○○○○○ on January 05, 2006 as a representative from the Plaintiff’s Provisional Central ○○○○○○○○○○○ Association, and thus, the instant disposition based on a different premise is unlawful.

C. “Approval of an organization deemed a corporation” under Article 13(2) of the Framework Act on National Taxes constitutes “report requiring acceptance for administrative convenience, which changes the subject of taxation from an individual entity rather than for an administrative agency to establish rights or to exempt an individual from its obligations.” Therefore, the Defendant has only the authority to formally and externally examine the application requirements of an organization deemed a corporation and to examine whether the requirements are met, and there is no authority to actually examine whether the representative appointed for business registration is the actual representative of the organization. Nevertheless, the Defendant’s determination on whether the Defendant has the power of representation by exercising the right of substantial examination is unlawful.

D. Even if the Defendant had the right of substantial examination, the Defendant recognized the Plaintiff Order as a corporation on October 2006 and granted a unique number under the Enforcement Decree of the Value-Added Tax Act at the same time, the instant disposition constitutes a disposition of revocation of approval of an organization deemed a corporation rather than a "disposition of non-approval of an organization deemed a corporation". However, while the Defendant issued a disposition of revocation of administrative disposition, it cannot be said that prior notice or hearing procedures under the Administrative Procedures Act were not followed and that there is no need for public interest to cancel the disposition. Thus, the instant disposition is unlawful.

E. Therefore, the instant disposition should be revoked on the ground that it appears to be any of its features and is unlawful.

4. Determination

Before determining the merits, this case's lawsuit satisfies the requirements of lawsuit shall be examined ex officio.

(a) Whether the necessary transfer principle is complied with;

As in this case, the administrative litigation seeking the cancellation of disposition under the Framework Act on National Taxes, unlike the discretionary transfer of administrative appeals in general administrative litigation, must undergo the procedure of prior trial, such as a request for examination or a request for trial, as prescribed by the Framework Act on National Taxes (Articles 55 and 56 of the Framework Act on National Taxes). However, according to the above acknowledged facts, there is no evidence to deem that the Gangwon ○○ individual raised an objection or a request for trial on the disposition of this case, and that the Plaintiff was filed an objection or a request for examination or a request

B. Whether ○○ is the representative of the Plaintiff’s Order

In an appeal litigation, an association or foundation that is not a juristic person may become a party under the name of the association or foundation (Article 8(2) of the Administrative Litigation Act, and Article 52 of the Civil Procedure Act). However, according to the above facts of recognition, the representative of the Plaintiff’s clan shall be the president of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s appointment of the Plaintiff’s president, it is difficult to view the appointment of the ○○○○○○○○○○○○○○.

5. Conclusion

Thus, the lawsuit of this case is dismissed as it appears to be one of the features and is unlawful, and the lawsuit cost is assessed against Gangwon-○○ (the resident registration number: ○○○○-○○○○○○○○○○○○○○○○○○○○○○○○○○○

Related Acts and subordinate statutes

○ Application of Article 8 of the Administrative Litigation Act

(2) Except as otherwise provided for in this Act, the provisions of the Court Organization Act, the Civil Procedure Act and the Civil Execution Act shall apply mutatis mutandis to administrative litigation.

Article 52 of the Civil Procedure Act, capacity of an association, etc. to be a party

Other association or foundation than a juristic person may, where it has a representative or administrator, become a party to a lawsuit in the name of such association or foundation.

○ An organization deemed a corporation under Article 13 of the Framework Act on National Taxes

(1) With respect to an unincorporated association, foundation or other organization (hereinafter referred to as an "unincorporated organization"), which falls under any of the following subparagraphs, it shall be deemed a juristic person and subject to this Act and other tax-related Acts and subordinate statutes:

2. Foundations which hold any basic property contributed for the public interest, but not registered.

(2) This Act and other tax-related Acts shall apply to an unincorporated association, foundation, or organization which is considered as a juristic person under paragraph (1), and which meets the requirements falling under any of the following subparagraphs and for which the representative or manager has obtained approval from the chief of the competent tax office, by deeming it as a juristic person. In such cases, the continuity and homogeneity of the relevant association

1. It shall have the rules relating to its organization and operation, and appoint its representative or manager;

2. They shall independently own and manage profits and property in their own account and name;

3. It shall not distribute its profits to its members.

(3) Any organization without a legal personality, which is considered as a juristic person under paragraph (2), shall not be changed to a resident until the taxable period in which the approval from the head of the competent tax office is obtained, and which includes the day on which three years elapse from the end of the taxable period: Provided, That this shall not apply where approval is revoked because it fails to meet

(4) The liability for the national taxes of an organization without a legal personality, which is considered as a juristic person under paragraphs (1) and (2) (hereinafter referred to as “organization considered as a juristic person”), shall be discharged by its representative or manager.

(5) Where a representative or manager is appointed or replaced for the purpose of fulfilling the obligation related to the national taxes, an organization considered as a corporation shall report it to the chief of competent tax office.

(6) The head of the competent tax office may, in case where there exists no report under paragraph (5), designate its members or one related certification as the person performing the duties related to national taxes.

(7) Necessary matters concerning the application and approval of an organization deemed a corporation, the issuance of tax code number, etc. or revocation thereof shall be prescribed by Presidential Decree.

○ Application and approval of an organization deemed a corporation under Article 8 of the Enforcement Decree of the Framework Act on National Taxes

(1) The representative or manager of an unincorporated association, foundation, or organization (hereinafter referred to as an "unincorporated organization") which intends to obtain approval pursuant to Article 13 (2) of the Act shall submit a document stating the following matters to the chief of the competent tax office:

1. Name of the organization;

2. Location of the principal office;

3. Name and domicile or temporary domicile of its representative or manager;

4. Business purposes;

5. Financial status;

6. Articles of incorporation or provisions concerning organization and operation;

7. Other necessary matters.

(2) The head of the competent tax office shall notify the applicant of documents submitted by a representative or manager of an unincorporated organization within 10 days from the date of application for approval.

(3) For an unincorporated organization which has obtained approval under paragraph (2), an identification number under the provisions of Article 8 (2) of the Enforcement Decree of the Value-Added Tax Act shall be given simultaneously with the approval: Provided, That this shall not apply where the organization intends to conduct a profit-making business and it is required to make a registration under the provisions of Article 1

(4) Where an unincorporated organization which has obtained approval under paragraph (2) fails to meet the requirements under subparagraphs of Article 13 (2) of the Act, the chief of the competent tax office shall, without delay, cancel the approval.

○ Report of the representative, etc. of an organization deemed a corporation

Where an unincorporated organization which is deemed as a juristic person under Article 13 (1) and (2) of the Act (hereinafter referred to as an “organization deemed as a juristic person”) desires to report on the selection or change of its representative or manager under Article 13 (5) of the Act, it shall submit to the chief of the competent tax office the document in which the name and domicile or temporary domicile of the representative or manager (in case of a change, the former and current representative or manager), and

○ Designation and notification of the representative, etc. of an organization deemed a corporation

The chief of the competent tax office shall, upon designating the person performing the duties related to national taxes under Article 13 (6) of the Act, notify without delay the organization considered as the juristic person in writing of the following matters:

1. Name, and domicile or temporary domicile of the person performing the duties related to national taxes;

2. Date of designation;

3. Grounds for designation;

4. Other necessary matters.

Article 55 (Appeal)

(1) Any person whose rights or interests are infringed by receiving an unlawful or unreasonable disposition, or by failing to receive a necessary disposition, as a disposition under this Act or other tax-related Acts, may request the cancellation or modification of the disposition, or a necessary disposition, by requesting an examination or adjudgment under this Chapter

Article 56 (Relation with Other Acts)

(2) Notwithstanding the provisions of Article 18 (1) (main sentence), (2) and (3) of the Administrative Litigation Act, any administrative litigation against any illegal disposition as prescribed in Article 55 shall not be instituted without going through a request for examination or adjudgment and a decision thereon under this Act.

Article 8 registration number of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19892 of Oct. 28, 2007)

(1) The registration numbers under Article 5 (2) of the Act shall be assigned to each workplace.

(2) The head of the competent tax office may, in order to efficiently process the taxation data, assign a unique number corresponding to the registration number to the persons under Article 20 (3) or (4) of the Act

○ Tax Liability under Article 1 of the Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006)

(3) Any unincorporated association, foundation or other organization, which is not an organization deemed a corporation under Article 13 (4) of the Framework Act on National Taxes (hereinafter referred to as "organization deemed a corporation"), shall be deemed a resident and subject to this Act.

○ Corporate Tax Act (amended by Act No. 8141 of Dec. 30, 2006) 1

The definitions of terms used in this Act shall be as follows:

2. The term "non-profit domestic corporation" means a domestic corporation which falls under any of the following items:

(c) Organizations treated as corporations under the provisions of Article 13 (4) of the Framework Act on National Taxes (hereinafter referred to as “organizations treated as corporations”);

○ Article 40 of the Administrative Procedures Act

(1) In case where Acts and subordinate statutes, etc. provide for the notification of completion of obligations by notifying the administrative agencies of certain matters with respect to the notification, the administrative agencies in charge of the notification shall post a notice (including any notice on the Internet, etc.) for the required documents and receiving agencies for the notification and other necessary matters under Acts and subordinate statutes, or furnish

(2) In case where the report as referred to in paragraph (1) meets the conditions falling under each of the following subparagraphs, the report obligation shall be considered to have been fulfilled when the report arrives at

1. Where no defects are found in the written notification;

2. When the required documents are duly appended; and

3. It shall meet such formalities requirements as prescribed by other Acts and subordinate statutes.

(3) In a case where a notification which does not meet the conditions of paragraph (2) is submitted, administrative agencies shall set forth a reasonable period and demand its supplement from the applicants.

(4) When the applicant does not submit a supplement within the period as stipulated by paragraph (3), administrative agencies shall clearly explain the reason and return the written notifications concerned.