Seocho 207west 5202 ( October 06, 2008)

Whether a real estate received from a member religious foundation from a member religious association constitutes real estate held in title trust.

The Foundation is deemed to fall under the title trust in view of the fact that the Foundation has completed the registration of real estate from the individual member church and incorporated it into the foundation's fundamental property but does not impose any restrictions on the profits from use, the purpose of incorporation is to maintain the consistency of the religious order, to prevent the division of a church, and to have paid taxes imposed by the

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

1. The Defendant’s disposition of correcting the comprehensive real estate holding tax for the year 2006 against the Plaintiff on November 12, 2007 shall be revoked.

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

The same shall apply to the order.

1. Circumstances of the disposition;

(a) Report on comprehensive real estate holding tax for 2006 by the Plaintiff;

(1) Date of report: December 15, 2006

(2) Contents: Amount of tax base: 68,067,336,497, calculated tax amount; 1,013,432,930, deducted and reduced or exempted tax amount; 30,402,986, and 983,029,944

(b)request for revision of comprehensive real estate holding tax 2006 by the plaintiff;

(1) Date of claim: August 31, 2007

(2) Grounds for rectification: 453 out of 516 bonds, 218 parcels out of 253 parcels of land subject to a general aggregate, and 80 parcels out of 86 parcels of land subject to separate aggregate (the combined housing and land; hereinafter referred to as the "Non-Dongsan") are owned by an individual member church belonging to the plaintiff foundation, and the plaintiff is not a trustee.

(3) Details of a request for rectification: Tax base amount of 2,020,277,040 won, calculated tax amount of 10,939,751 won, 328,192 won, and tax amount of 10,611,559 won.

(c) a disposition rejecting the correction of the defendant (hereinafter referred to as "disposition of this case");

(1) Date of disposal: November 12, 2007

(b) Grounds for refusal: No change in ownership of the real estate subject to the report of comprehensive real estate holding tax as of the base date of taxation, 2006;

[Reasons for Recognition] The descriptions of Gap evidence 5 to 8, Eul evidence 1, 2, and 5, and the purport of the whole pleadings

2. Judgment on the Defendant’s main defense of safety

A. Defendant’s assertion (no qualification for Defendant)

The Defendant issued the instant disposition against the Plaintiff, but the Local Tax Act explicitly specifies the Plaintiff as a local government, so the instant lawsuit shall be filed against the head of Jung-gu, the head of the local government having jurisdiction over the Plaintiff. Therefore, the Plaintiff’s lawsuit is unlawful against the erroneous Defendant.

B. Determination

As long as the Defendant issued the instant disposition under the name of the Defendant to the Plaintiff, regardless of whether the Local Tax Act specifies the person entitled to impose local tax as a local government, the other party to the instant disposition is the Defendant. The Defendant’s assertion is without merit

3. Whether the dispositions of the instant case are legal.

(a)the master of the plaintiff;

(1) The Plaintiff is merely a trustee of the title of the real estate in this case.

(2) The Plaintiff Foundation’s members affiliated with the Plaintiff Foundation that actually owns the instant real estate regardless of whether the ownership in the public record was registered as the owner is liable to pay comprehensive real estate holding tax on the instant

(b) relevant statutes;

It shall be as shown in the attached Form.

(c) Fact of recognition;

(i)the management of property in Chapter VII of the Council of Audit and Supervision of Guidematics;

- All land, buildings and facilities owned and managed by the headquarters of the 22 (Property Management) Monitoring Association, affiliated associations and affiliated organizations and institutions under the 22 (Property Management) Organization should be incorporated into and preserved for the Plaintiff Foundation.

- Article 23 (Disposal of Property and Debentures) In the event of disposal of land, buildings and facilities under incorporation into and preservation for the Plaintiff Foundation, or an act of bearing obligations, such as debt collection, it must obtain prior approval from the board of directors of the Plaintiff Foundation.

- Article 24 (Appointment of Directors) In order to establish a corporation and foundation for land, buildings and facilities included and preserved in the Plaintiff Foundation, prior approval shall be obtained from the board of directors of the Plaintiff Foundation, and in the event that a corporation and foundation are established, the directors of the corporation concerned must be dispatched by the supervisory council. The directors of the corporation which has already been established with the property of the individual church should also be dispatched by the supervisory council.

(2) Preparation and keeping of a list of property registers;

The plaintiff foundation manages the list of the basic property register for each annual association by separating the real estate and the real estate owned by the foundation, incorporated and preserved by the affiliated association of its members.

(3) Plaintiff’s purpose (corporate register)

The purpose is to own and manage land, buildings, and equipment necessary for all churches (individual members' meetings) belonging to the Korea Exemplary Monitoring Council, and the transfer roads, education, rescue and relief, childcare facilities, and other social edification service projects operated by these churches, and to supply necessary property.

(4) Circumstances concerning the acquisition of ownership of the real estate of this case

(a) Each partner has acquired real estate through a constitutional donation, contribution, and self-import of the church, etc., or has completed the registration of the name of the plaintiff foundation in the form of donation or sale after donation to the church.

(B) Even after the registration of the Plaintiff Foundation’s name, the Association members used the instant real estate as a church site, a wedding, a worship, an education hall, and its appurtenant land, Dogwon, training center, etc.

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Gap 9 to 363 evidence (including each number), the purport of the whole pleadings

D. Determination

(1) Ownership of church properties: Collective ownership of the members (see Supreme Court en banc Decision 2004Da37775 delivered on April 20, 2006, Supreme Court Decision 2007Ma224 delivered on June 29, 2007).

(A) As long as a church exists as an association which is not a legal entity, in resolving disputes surrounding its legal relations by means of a lawsuit, the general theory of the Civil Code concerning an association which is not a legal entity shall grasp the substance of the church and determine the ownership of the church's properties.

(B) Members shall own church properties in the form of collective ownership and use them and benefit therefrom.

(2) Whether the registration of the name of the Plaintiff Foundation on the instant real estate is title trust or not

Comprehensively taking account of the following facts and arguments as seen earlier, it is reasonable to view that the registration of the instant real estate in the name of the Plaintiff by the members of the association affiliated with the Plaintiff Foundation in the name of the Plaintiff constitutes a kind of title trust, as it is with the purport of strengthening the affiliation of the supervisory council and securing unity, or purporting to faithfully perform the rights and obligations as a member of the supervisory council, and not performing any act contrary to the purpose of its establishment, rather than having the Plaintiff acquire the ownership ultimately.

(A) The member society acquired the real estate of this case with the contribution, contribution, and revenue of the church as the original funds of the members society.

(B) The Joining Association was directly liable for taxes on the property tax, etc. imposed in the name of the Plaintiff Foundation on the instant real estate. If the funds are needed, the Joining Association had the authority to dispose of the instant real estate, such as providing the instant real estate as collateral and obtaining a loan, or transferring it to a third party, with prior approval of the board of directors of

(C) The Plaintiff Foundation received the registration of the instant real estate from the individual members society, and incorporated the instant real estate into the foundation’s fundamental property, but there was no restriction on the use and profit-making of the real estate, and thus, the members of the Plaintiff Foundation used the instant real estate as religious facilities.

(D) According to the doctrine and the regulations of the church administration, all land, buildings, and facilities of the church members are forced to be incorporated into and preserved for the foundation. This is for maintaining the consistency of the religious order, securing the unity with individual family association, and preventing the division of the church due to the privateization of the church properties and the property dispute.

(E) The doctrine that requires the members of the Association to incorporate and preserve the property as a foundation, and the doctrine itself requires only the change of the registration name, but does not stipulate the transfer of the ownership itself.

(f) If there are no essential facilities for assemblies, worships and other religious activities, such as assembly buildings (e.g., weddings), school sites, pastors, and educational halls, etc., which are essential for the purpose of existence of assemblies, worships and other religious activities, and if there is no essential facilities such as assembly and worship, the existence of the teachers’ association itself may be maintained.

(G) Article 104-13 of the Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007 and enforced from January 1, 2008) stipulated the provision on property title trust of an individual religious organization by stipulating that, among the housing or land owned by an individual Confucian school or an individual religious organization, where a house or land is registered for the purpose of evading taxes before January 4, 2005 under the name of a Confucian school or a religious organization to which the individual organization belongs, the organization that actually owns the house or land shall be deemed as the person liable for the comprehensive real estate holding tax as of the tax base date and the individual organization may report the comprehensive real estate holding tax. In this case, the house or land subject to comprehensive real estate holding tax shall be deemed as the individual organization only in the taxation of the comprehensive real estate holding tax.

(c) Taxpayers of comprehensive real estate holding tax;

A person liable to pay comprehensive real estate holding tax is a person who actually owns property as of the tax base date (Article 183(1) of the Local Tax Act). Here, a person who actually owns property should be deemed to have the actual ownership of the relevant land regardless of whether he/she is registered as an owner on the public register (see, e.g., Supreme Court Decision 2002Du6361, Nov. 28, 2003

Therefore, the taxpayer of the comprehensive real estate holding tax on the real estate in this case is not the plaintiff who is the title trustee, but the individual member of the association or each of its members who have a real ownership on the real estate in

(4) The theory of lawsuit

The instant disposition rejecting a claim for rectification of comprehensive real estate holding tax on the ground that the Plaintiff is not a de facto owner of the instant real estate was unlawful.

4. Conclusion

The plaintiff's claim for this case shall be reasonable and acceptable.