Early High Court Decision 2009172 (Law No. 96.30)

Land transferred by the committee for relocation measures has tax liability for transfer in proportion to each share as collective ownership.

The relocation measures committee must be deemed to have an entity as a non-corporate group, and since the land owned by the committee is owned jointly, there is a liability to pay capital gains tax as much as its shares in the transferred land.

The contents of the decision shall be the same as attached.

1. The plaintiff's claims are all dismissed.

2. The plaintiffs shall bear the litigation costs.

The Defendant’s imposition disposition of KRW 93,92,320 (including special rural development tax; hereinafter the same shall apply) against Plaintiff LA on January 2, 2009 and KRW 98,826,650, including the transfer income tax for the year 2007, and KRW 91,267,200, including each transfer income tax for the year 2007, against Plaintiff LAE, is revoked.

1. Circumstances of the disposition;

가. 원고들은 2007. 2. 12. △△전 △△1리 이주대책위원회(이하 '이 사건 위원회'라 고 한다) 명의의 별지 부동산 목록 기재 각 토지(이하 '이 사건 토지'라고 한다) 중 원고들의 지분(각 1/19지분씩 합계 5/19)을 ☐☐력 주식회사(이하 '소외 회사'라 고 한다)에 공공용지로 협의이전하고 2007년 양도소득세 등을 신고하지 않았다.

B. Accordingly, the defendant conducted a survey of transfer income tax for the plaintiffs, confirmed that the actual acquisition value of the plaintiffs' shares among the land in this case is 18,664,200 won (3,732,840 won per plaintiff) and the actual transfer value is 1,95,440,50 won (391,08,100 won per plaintiff) and accordingly, disposed of the plaintiff LA as transfer income tax for January 2, 2007 (including other real estate transfer income tax), 93,92,320 won for the plaintiff LA (including other real estate transfer income tax), 98,826,650 won for the plaintiff LB (including part of other real estate transfer income tax, 98,590,100 won for the plaintiff LA without deducting the tax amount for late payment, and then calculated as 98,590,100 won for each of the plaintiff CC, ED, and 206 won for each of the cases (hereinafter referred to as "each case").

C. On April 3, 2009, the Plaintiffs appealed to the Tax Tribunal on April 3, 2009, but on June 2009.

30. The plaintiffs' claims were dismissed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 2, 6, 7, 8 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the dispositions of this case are proper; and

A. The plaintiffs' assertion

The commission of this case is a partnership or non-corporate association with its nature, and the ownership relationship of the land of this case is owned jointly or collectively, and the plaintiffs, as members belonging to the commission of this case on December 28, 2006, have their respective shares in all of the purchase price of 14/19 shares out of the land of this case and the purchase price of 5/19 shares out of the land of this case on January 30, 2007. Accordingly, the defendant shall be taxed according to the standard of 2006 in 2006, and 5/19 shall be imposed according to the standard of 2007, while the defendant shall have the whole right only for the sale of the land of this case on January 30, 2007, the plaintiffs erred in applying the standard of 2007 to the total purchase price of this case.

(b) Related statutes;

It is the same as the entry of the attached statutes.

(c) Fact of recognition;

(1) On June 27, 1992, a village residents including the plaintiffs were approved and publicly announced as a site for the △△-do subsidiary facilities in Yang-si, Chungcheongnam-si, which had been residing by the plaintiffs. On December 12, 1996, the committee was organized by 19 village residents, including the plaintiffs, and the relocation was completed after being removed from the committee. On January 2, 2006, the land of this case was accepted and publicly announced as a site for the radioactive waste disposal facilities.

(2) On July 15, 2006, the instant committee held an extraordinary general meeting of 10 members among the total number of 11:00 members, and withdrawn from the instant committee. The land possessed by the said Plaintiffs is subject to the registration of transfer of ownership to each of the said Plaintiffs on the grounds of donation. The instant land was approved with the consent of all participating members to make a provisional registration of transfer of ownership on the grounds of trade reservation as equal to the shares of the said Plaintiffs.

(3) On July 27, 2006, Plaintiff EE, LA, LA, LCC, and LB completed the provisional registration of the right to claim ownership transfer on July 26, 2006, each of the instant land, with 1/19 shares, and thereafter, Plaintiff HoD also completed the provisional registration of the right to claim ownership transfer on August 7, 2006 as to 1/19 shares out of the instant land on August 3, 2006.

(4) The non-party company, the contractor of the radioactive waste disposal facility construction project, did not enter into a sales contract on the ground that the provisional registration for the right to claim ownership transfer based on the purchase and sale reservation was made in the name of the plaintiffs, and that there was a defect in the register of real estate register. On December 27, 2006, the non-party company entered into a sales contract for the remaining 14/19 shares except the above provisional registration (5/19) out of the land in the name of the plaintiffs, and completed the registration of ownership transfer in the name of the non-party company on the 29th of

(5) After that, on January 22, 2007, the plaintiffs cancelled the provisional registration of the right to claim ownership transfer as above, and on January 29, 2007, on the ground that the land of this case was registered in the future of the committee of this case.

In lieu of the plaintiffs, the Chairman of the Committee delegated the authority to receive the purchase price of the shares of 5/19 out of the instant land on behalf of the plaintiffs.

(6) On January 30, 2007, the non-party company entered into a sales contract of KRW 1,955,440,500 with respect to the 5/19 shares of the instant land among the instant land, and completed the registration of ownership transfer in the non-party company on February 12, 200, and on February 14, 200, the largest FF received from the non-party company the share of KRW 1,86,921,795, excluding the share of residents in the site development from the non-party company, and paid it to the plaintiff Choi-A, the representative of the plaintiffs, and the plaintiff Choi-A distributed it equally to himself and the other plaintiffs.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5, 6, 7, Eul evidence Nos. 2, 3, 4, and 9 [Plaintiff's defense to the effect that the largest FF voluntarily prepared and forged Eul evidence No. 9 (the minutes of the special general meeting of the Relocation Measures Committee without holding an extraordinary general meeting, but no evidence to acknowledge it exists], the result of fact-finding conducted by △△ Foundation of this court, the purport of the whole pleadings, and the purport of the whole pleadings

D. Determination

(1) The instant commission has an organization organized for the purpose of dealing with all affairs related to the migration of village residents, such as its own rules, its general assembly and its representative, which is a decision-making body, and its existence, regardless of any change arising from the membership, withdrawal, etc. of its members, etc., the commission has the substance as a non-corporate group.

(2) Therefore, the committee of this case as non-corporate group of this case under Articles 275 and 276 of the Civil Act shall be deemed to be jointly owned, and the management and disposal of collective ownership shares shall be deemed to be by the resolution of the general meeting of members. In other words, under the above circumstances, the committee of this case shall adopt an extraordinary general meeting resolution with respect to each share out of the land of this case, which shall be registered as the right to claim the transfer of ownership, while the committee of this case withdraws from the committee of this case, and the plaintiff Dod shall also have registered the right to claim the transfer of ownership as to the same share as the above plaintiffs. On January 22, 207, 5/19 of the land of this case were not jointly traded with the remaining shares of this case, and the plaintiffs' right to claim the transfer of ownership to the land of this case shall be deemed to have been jointly owned by the committee of this case without cancellation of the plaintiffs' right to claim the transfer of ownership as to the remaining shares in this case's land of this case.

(3) Therefore, since the plaintiffs are members of the committee of this case and the entire land of this case collectively owned by the committee of this case, the plaintiffs' assertion on the premise that they have their respective shares in all of the purchase price of 14/19 shares out of the land of this case and the purchase price of 5/19 shares out of 5/19 shares is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.