"Unincorporated association" should be regarded as an independent taxpayer regardless of whether the method of profit distribution or the ratio of profit distribution has been determined;

Since the association of this case constitutes an unincorporated association and is deemed to have the status of independent taxpayer pursuant to Article 2(2) of the Value-Added Tax Act, it is not jointly liable to pay the value-added tax imposed on the association of this case to the plaintiff as a member of the association

Article 2 (2) of the Value-Added Tax Act

2013Guhap2129 Disposition to revoke the imposition of value-added tax

KimA

Head of Central Tax Office

July 26, 2013

September 13, 2013

1. The Defendant’s disposition of imposition of the value-added tax on March 9, 2012 against the Plaintiff on March 9, 2012 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

"A. On September 20, 196, the Plaintiff is a member of a development cooperative BB established for the purpose of engaging in the business of joint development, sale, lease, management, operation, etc. of commercial buildings on the OO-dong OO-dong 200-5 and 12 parcels of land at OO-si, O-si, 1996 (hereinafter referred to as "the instant cooperative")." and "B. The Defendant corrected the value-added tax OOOOO for the first period of 2006, considering the tax invoice received from BB World Co., Ltd. during the first taxable period of 2006 as a tax invoice different from the fact, the Plaintiff deemed as a member of the instant cooperative, and thus, the Plaintiff as a member of the instant cooperative, was subject to the disposition imposing the above value-added tax on the Plaintiff on March 9, 2012 (hereinafter referred to as "the instant disposition"). The Plaintiff dissatisfied with this, and claimed for adjudication on June 7, 2012, but dismissed the claim.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 2(2) of the former Value-Added Tax Act (amended by Act No. 9268 of Dec. 26, 2008; hereinafter referred to as the "former Value-Added Tax Act") provides that the association of this case is an unincorporated association under Article 2(2) of the former Value-Added Tax Act, and thus, it cannot be deemed that the Plaintiff, a member of the association of this case, is jointly and severally liable to pay value-added tax imposed on the association of this case. Therefore, the disposition of this case premised on

It is as shown in the attached Form.

C. Facts of recognition

(1) On September 20, 1996, the articles of incorporation of the cooperative (1) limits the number of members of the association with an independent title called BB as "development cooperative" (Articles 1 and 5); (2) the cooperative's joint development project; (3) the cooperative's affairs concerning the management and operation of commercial buildings; (4) the association's affairs were conducted with an additional statement of change in its business plan with an independent title, 253-63 (Article 1 and 5); (3) the association's affairs concerning the appointment of officers, the articles of incorporation, and the approval of financial statements; (4) the association's business plan with an additional statement of change in its title and location; (5) the association's business plan with an additional statement of change in its business plan with an approval of the general meeting of members; (3) the association's business plan with an additional statement of change in its title and location; and (4) the association's revenue and expenditure statement of change in its business plan with an additional statement of change in its business plan; and (2) the association's statements of increase and auditor.

3) According to the articles of incorporation amended on January 7, 2001, the association of this case changed the office into the OOO 200-5 BB shopping district (Article 5), and the two-thirds of the union property disposal, settlement, and distribution by the method of resolution at the general meeting were added (Article 10).

[Reasons for Recognition] Unsatisfy, Gap evidence 5-1 to 3, the purport of the whole pleadings

D. Determination

1) Whether an unincorporated association constitutes an independent taxpayer under the Value-Added Tax Act

Article 13(1) of the former Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 206; hereinafter referred to as the "former Framework Act on National Taxes") provides that an association without legal personality shall be deemed as an association or foundation established with permission or authorization from the competent authorities or an entity with no basic property contributed for public interest and that Article 13(2) of the former Income Tax Act shall apply to such an association or foundation without legal personality; Article 13(2) of the former Enforcement Rule of the Income Tax Act provides that an association or a foundation without legal personality shall be deemed as a corporation without legal personality; Article 2 of the former Enforcement Rule of the Income Tax Act provides that an association or a manager shall be appointed with provisions concerning its organization or operation without legal personality and shall be deemed as an association or a foundation without legal personality and shall be deemed as a corporation without legal personality and shall be subject to the provisions of Article 13(2) of the former Framework Act on National Taxes (Article 2 of the former Income Tax Act).

A) Although there is no legal personality of an association and a non-legal entity under the Civil Act, in distinguishing between a non-legal entity that is recognized as an association, it should be judged on the basis of the strongness of its organization. The association is established under a contractual relationship between two or more persons to contribute money, property, or labor to operate a joint business, and thus, it is subject to the limitation from a certain group. However, while the personal identity of its members is sufficiently revealed, a non-legal entity has a characteristic of an organization that can be a subject of rights and obligations, separate from the personal identity of its members, apart from the personal identity of its members. Accordingly, a non-legal entity has an organizational structure, such as establishing a rule with its own objective, establishing a rules with a nature of an association, and appointing a decision-making body and a representative who is an executive body. A decision or execution method of an organization is conducted by the principle of majority, regardless of the membership, withdrawal, etc., the organization is still in existence, regardless of its change, and it is determined as a non-legal entity.

B) In full view of the following circumstances: (a) the association of this case has the purpose of operating the joint development and sale and lease of commercial buildings; (b) the management and operation of the commercial buildings; (c) the association of this case has its articles of association in order to achieve this purpose; (c) the general assembly, board of directors, the president of the association, directors, auditors, etc.; (d) the organization itself remains in existence regardless of the change due to the principle of majority, the withdrawal and expulsion of members; and (d) the operation of the general assembly or board of directors, the method of representation, the management of assets, and other important matters determined by the general assembly or board of directors; and (e) the association of this case has the substance of an unincorporated association, not a legal entity, under the Civil Act.

3) Sub-determination

Since the association of this case constitutes an unincorporated association and is deemed to have the status of independent taxpayer pursuant to Article 2(2) of the Value-Added Tax Act, it cannot be deemed that the Plaintiff, a member of the association of this case, is jointly and severally liable to pay the value-added tax imposed on the association of this case. Therefore, the Plaintiff

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.