It should be deemed that part of the land No. 2 of this case was used for the purpose of protecting graves.

The Plaintiff’s appearance of “use and profit-making of the land No. 2 of this case” cannot be deemed to have changed from the date of the division to the date of the transfer of a grave. Thus, it should be deemed that the Plaintiff used the land No. 2 of this case for the purpose of protecting the grave from the date of acquiring the ownership of the land before

Article 2 of the Enforcement Decree of the Corporate Tax Act

2017Guhap60988 Revocation of Disposition of Rejecting Corporate Tax

○○ ○ Crons

○ Head of tax office

oly 2017.13

2017.08.24

1. The defendant's rejection disposition against the plaintiff on March 4, 2016 **** The rejection disposition against the plaintiff on March 4, 2016

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) Status, etc. of the political party;

1) The Plaintiff is an organization that consists of ** after public subscription** public*mar** The purpose of which is to safeguard and drawing graves, etc.

2) On February 19, 1936, the Plaintiff completed the registration of ownership transfer with respect to 67-1 forest land and 12,950 square meters in the name of TPP-dong (hereinafter “PP-dong”) prior to the partition of the graves owned by a majority of those graves on the ship on February 19, 1936. On June 29, 2001, part of the above land was divided into the land of 67-19 land in the PP-dong, 67-20 land in the PP-20 land in the PP-dong, 67-22 land in the PP-dong, 67-1 forest land in the PP-1 forest and 5,380 square meters in the name of P-dong prior to the subdivision (hereinafter “before the subdivision”).

(b) Partial subdivision and transfer of land;

(1) Around 2008, the Plaintiff was able to 7 plants of a vessel’s grave on the land before the instant partition. However, on January 9, 2008, 2008, on the land before the instant partition, 2007 were divided into two plants (hereinafter “instant grave”). On November 10, 205, the land before the instant partition was divided into 67-1 forest and field 4,570 square meters (hereinafter “1 land”) and 2 PPdong, PPP-26 forest and field 810 square meters (hereinafter “2 land”).

3) On December 8, 2015, the Plaintiff obtained approval from the Defendant as an organization deemed a corporation pursuant to Article 13(2) of the Framework Act on National Taxes. On the same day, the Plaintiff concluded a sales contract for the instant land No. 2 with Gangseo, and completed the registration of transfer of ownership on January 15, 2016 (hereinafter “transfer of the instant land No. 2”).

(c) Payment of corporate tax on the grounds of capital gains, and subsequent years;

1) On February 22, 2016, the Plaintiff made a preliminary return and payment of corporate tax ****** on the ground of capital gains in relation to the transfer of this case, but on February 26, 2016, the Plaintiff filed an application for rectification of corporate tax seeking a refund of the said amount against the Defendant, asserting that the said capital gains are not subject to corporate tax.

(2) On March 4, 2016, the Defendant rejected the Plaintiff’s request for correction of the said corporate tax (hereinafter “instant disposition”). (3) The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on March 29, 2016, but was dismissed by the Tax Tribunal on November 9, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Gap evidence 7 through 9 (including branch numbers, hereinafter the same), Gap evidence 6 video, the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiff's assertion

As at the time of the transfer of this case, the Plaintiff used the land No. 2 for the Plaintiff’s proper purpose business for not less than three years, the transfer income of the land No. 2 is not subject to the corporate tax. Therefore, the instant disposition is unlawful because there is no ground for

B. Summary of the defendant's assertion

In light of the grounds for disposition and relevant statutes, the instant disposition is lawful. Considering the lower ratio of the size of the area of the instant grave to the area of the land before the instant partition, etc., the Plaintiff’s use of the entire land before the instant partition after January 9, 2008 for the purpose of safeguarding the grave, which was the 5th out of the 7th grave located on the instant land before the instant subdivision, cannot be deemed as having been used for the purpose of safeguarding the grave. Even if the Plaintiff used the land before the instant subdivision for the purpose of safeguarding the grave even after such subdivision, the use of the land before the instant subdivision for the purpose of safeguarding the grave on November 10, 2015, which was the date of the instant subdivision, should be deemed as suspending the use of the instant land for the purpose of safeguarding the grave on the instant land

3. Whether the instant disposition is lawful

(a) Relevant statutes;

▣ 법인세법

Article 3 (Scope of Taxable Income)

(1) Corporate tax shall be imposed on the following income: Provided, That for non-profit domestic corporations and foreign corporations, corporate tax shall be imposed only on income under subparagraphs 1 and 3:

1. Income for each business year; and

(3) Income of a non-profit domestic corporation for each business year shall be income generated from business or revenue under the following subparagraphs (hereinafter referred to as "profit-making business"):

5. Revenues accruing from the disposal of fixed assets (excluding fixed assets prescribed by Presidential Decree and directly used for proper purpose business);

▣ 구 법인세법 시행령(2017. 2. 3. 대통령령 제27828호로 개정되기 전의 것)

Article 2 (Scope of Profit-Making Business)

(2) "Other assets prescribed by Presidential Decree" in Article 3 (3) 5 of the Act means assets used directly for a proper purpose business (excluding profit-making business under paragraph (1)) prescribed by statutes or the articles of incorporation for at least three consecutive years as of the date the relevant fixed assets are disposed of. In such cases, where incidental profits, such as admission fees and admission fees, for the maintenance, management, etc. of the relevant fixed assets, are

B. Determination

Inasmuch as the number of graves on the land before the instant partition reduces in quantity, it cannot be readily concluded that all or part of the said land was used for purposes other than the protection of graves, etc., in light of the following: (a) evidence Nos. 4, 1, 2, and 6 are insufficient to acknowledge the fact that the Plaintiff continued to use the land No. 2 for three years or longer as of the date of the instant transfer, and there is no evidence to acknowledge otherwise.

Rather, considering the following circumstances revealed in the above facts of recognition, it shall be deemed that the Plaintiff used the part of the land of this case for the purpose of the protection of graves from February 19, 1936 to the date of the transfer of this case, since the Plaintiff acquired the ownership of the land before the subdivision of this case for the purpose of the protection of graves. Therefore, the instant disposition

① The Plaintiff acquired the instant land before the instant subdivision for the purpose of protecting and dysium. Of those graves on the instant land before the instant subdivision, the Plaintiff still existed in the land No. 1 until now.

② There is no evidence to deem that the Plaintiff used all or part of the instant land and the instant land from the land before and after the instant partition before the date of transfer for any specific purpose other than graves, nursing and wing.

③ In light of the fact that the instant partition was conducted with the purpose of “disposition of the instant land No. 2, which falls under a part of the land prior to the instant partition,” and that the interval between the date of the instant partition (on November 10, 2015) and the date of the instant transfer (on January 15, 2016) appears not to exceed the reasonable period necessary for the disposal of the instant land No. 2, it cannot be deemed that the Plaintiff’s form of “use and profit-making with respect to the instant land No. 2, around the date of instant partition, has changed.”

4. Conclusion

Thus, since the disposition of this case is unlawful, the plaintiff's claim seeking its revocation is justified.