The representative of the plaintiff clan who brought a lawsuit cannot be viewed as a legitimate representative, so it is dismissed.

Since each general meeting that appoints the representative of the clan which filed the lawsuit of this case is null and void, it cannot be deemed a legitimate representative of the clan.

Article 94 of the Income Tax Act

2012Guhap568 Revocation of Disposition of Imposing capital gains tax

AAC AAP AA Protocol Division

Chuncheon Director of the Tax Office

September 13, 2013

October 25, 2013

1. The instant lawsuit shall be dismissed.

2. The costs of litigation shall be borne by the newB.

Cheong-gu Office

The Defendant’s disposition of imposing OOO on the Plaintiff on August 4, 2011 is revoked.

1. Details of the disposition;

"A. On April 25, 2008, the NewCC entered into a contract with the plaintiff clan Kim D on April 25, 2008 to sell 00 3,263 square meters (hereinafter "the land in this case") in the position of the representative of the plaintiff clans, and completed the registration of ownership transfer of the above land to Kim D on May 14 of the same year," and "B. The defendant issued a disposition to impose OOOOOOO of the capital gains tax for the year 2008 on August 4, 201 on the ground that the plaintiff's clan sold the above land and did not report the capital gains tax (hereinafter "the disposition in this case")", "No dispute over the grounds for recognition, Gap's evidence Nos. 1 through 4, Eul's evidence No. 1 (including the relevant numbers), the purport of the whole pleadings, and the purport of the whole pleadings.

2. The plaintiff's assertion

Since NewCC concluded a sales contract by holding a temporary general meeting with the status of forging the Plaintiff clan and failing to meet the quorum, the transfer of the said land is null and void and the instant disposition based on the premise that the said land was transferred effectively is unlawful.

3. The defendant's main defense and the plaintiff's assertion on it

A. The defendant's main defense

A newB is not the representative of the Plaintiff’s clan because it has not been elected as the representative of the clan general meeting through legitimate procedures. Accordingly, the instant lawsuit is unlawful because it is filed by a person who has no capacity to represent the Plaintiff.

B. The plaintiff's assertion on this safety defense

1) A newB was elected by convening a general meeting of shareholders on November 7, 2009 with the consent of the newCC as the former representative and jointly with the newCC to convene a general meeting of shareholders on August 21, 2010. After that, the Plaintiff filed a lawsuit against the Seoul Northern District Court (2010DaDa26995) seeking the procedure for cancelling the ownership transfer registration of the said land with the name of the newCC as the representative of the former president, and the newB was selected as the representative on January 31, 201 by convening a general meeting of shareholders on January 31, 2011.

"2) After the filing of the instant lawsuit, as a problem arises with respect to the convening procedure of the above general meeting, newB decided to hold a general meeting of the clan as an agenda for ratification of the procedural acts, and to the members of the clan 29 who are the existing representative of the newCC and the next order of the new EE (the new FF, a non-permanent guardian, refused to participate in the clan's work on the grounds of health deterioration, etc.) with the consent of the former representative of the clan, and notified each general meeting convocation by means of registered mail to the remaining members whose address is unknown, who are not known, by means of a registered mail, to make a public announcement of convening a general meeting in the sports newspaper. On October 38, 2012, 21 of the members of the clans attended by 21 and one person was elected as the representative of the clan at the clans general meeting held with the delegation of the consent, and 3) therefore, the newB is legitimate in the instant lawsuit brought by the newB.

B. Determination

1) Facts of recognition

In full view of each of the above evidence, Gap evidence Nos. 5, 8 through 13, 16, Eul evidence Nos. 2 and 6 (including the corresponding numbers), the following facts can be acknowledged:

① 원고 종중은 AA씨 사간공파 제26대 신GG의 후손 중 만 20세 이상의 남, 녀를 구성원으로 한 종중으로, 종중규약은 ㉠ 제6조에서 종중의 임원으로 도유사, 부도유사, 총무유사, 감사유사 각 1명을 두도록 하고, ㉡ 제8조에서 도유사는 본 종중 을 대표하며 각종회의의 의장이 되고, 부도유사는 도유사를 보조하며 도유사 유고시에는 그 직무를 대리하도록 규정하고 있으며, ㉢ 제10조에서 임시총회는 도유사가 필요시 또는 유사 과반수의 소집요구로서 도유사가 소집하고 회의개최 10일 전에 우편 또는 FAX로 연락함을 원칙으로 하되 전화통보로 대신할 수 있고, ㉣ 제11조에서 임원선거에 관한 사항은 종중총회에서 의결한다고 각 규정하고 있다.

② On November 13, 2005, the Plaintiff clan held a general meeting and elected the newCC as the representative of the Plaintiff clan.

③ On November 7, 2009, 11 members of the 20th clans, including the 10th clans, were elected as the representative of the 10th clans, and the 2nd clans were decided to delegate legal disputes to the representative of the 1st clans, and the 1st clans and the 2nd clans were held on August 21, 2010 to the 38th clans at the time that the 12nd clans and the 1st clans were not represented by the 10th clans and the 1st clans and the 2nd clans were not represented by the 10th clans and the 1st clans and the 2nd clans were not represented by the 10th clans and the 1st clans and the 12nd clans were not represented by the 20th clans and the 38th clans and the 2nd clans were not represented by the 1st clans and the 12th clans were not represented by the 21310th clans.

According to the above facts, the first and second clans' general meeting shall be null and void as a clan general meeting lack of convening a convocation notice for some members, and since there is no evidence to regard 12 members, who are the convening authority of the third clans' legitimate convening authority of the clans' general meeting, newBes elected as the representative of the plaintiff clans's newB shall not be deemed legitimate representative of the plaintiff clans's newBs, the lawsuit of this case filed by the plaintiff clans' representative shall be deemed unlawful. Further, when the fourth clans' general meeting confirms the legal acts of the non-authorized members by selecting newB representative, it shall be deemed that the third clans' general meeting provides a notice of convening a general meeting of about 46 members to about 38 members, but the fourth clans' general meeting provides a notice of convening a general meeting of about 29 members, the fourth clans' general meeting shall be deemed null and void without asking some reasons for the difference in the number of members of the two clans' general meetings (The plaintiff shall be deemed null and void even if the non-permanents's's' representative's reply to the above.

Therefore, NewB elected by the fourth clan General Assembly cannot be said to be the legitimate representative of the plaintiff clan.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.