Whether the real estate transfer income of an incorporated foundation that establishes and operates a kindergarten is a non-taxable income under Article 59-3 (1) 12 of the former Corporate Tax Act (amended by Act No. 3200 of December 28, 1979).

Although the purpose of establishment and operation of a kindergarten which is a private school under Article 2 of the Addenda of the Private School Act was not changed within the prescribed period of time as an incorporated foundation under the Civil Act, it does not differ from school juristic person in establishing and operating a kindergarten which is a private school. The above real estate owned by the juristic person was used for educational business by disposing of the above real estate and appropriating for the new establishment of a kindergarten and the purchase cost of the land for the school, and the provisions on school juristic person under the Private School Act shall apply mutatis mutandis to the incorporated foundation which is deemed impossible to change organization as a school juristic person due to special circumstances under the latter part of Article 2 of Addenda of the Private School Act, and the provisions on school juristic person under the Private School Act shall apply mutatis mutandis to the incorporated foundation which maintains and operates the established school.

Article 2 of the Addenda to the Private School Act; Article 59-3 (1) 12 of the former Corporate Tax Act (Act No. 3200, Dec. 28, 1979)

3. Cheongne Driving Schools

Gangwon-gu Director of the District Office

The defendant's disposition of imposition of 7,522,36 won and 782,564 won and defense tax against the plaintiff on April 8, 1983 shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

The defendant, on April 8, 1983, considered Gap's certificate 3 (Permit), 5 (Articles of Incorporation), 6-1 (Notice of Conversion of Fundamental Property), 2 (Notice of Change), 8-1 (Notice of Change), 2-9-1 (Approval of Change), 2-2 (Order of Change), 10-1 (Approval of Change), 14-1 (Authorization of Change), 15-1 (Authorization of Change), 2-1 (Approval of Change), 15-2 (Approval of Change), 16-1 (No. 9), 16-2 (No. 9), 14-1, 16-1, 16-2 (No. 16-2), 16-1, 16 (No. 16-2), 1-1, 2-2 (No. 36-4, 36, 46, 2-2, and 3 of Seoul High School Act, and so on.

According to Article 59-2 (1) 12 of the Corporate Tax Act which was enforced at the time, the Plaintiff asserted that the income accrued from the transfer of basic property owned by a school foundation established under the Private School Act should not be added to the special surtax. Thus, the Plaintiff corporation, which actually serves with the above school foundation, should be deemed as non-taxable income by applying or applying the above Article mutatis mutandis to the above provision. The Defendant asserted that the Plaintiff corporation does not constitute a school foundation with the above school foundation, and therefore, the instant taxation is justifiable.

According to Article 59-3 (1) 12 of the Corporate Tax Act which was enforced at the time, income accrued from the transfer of basic property owned by a school foundation was defined as non-taxable income. However, in this case, as to whether the above non-taxable provisions can be applied or applied mutatis mutandis to the plaintiff foundation in this case, it is above that the plaintiff foundation was incorporated under the Civil Act and did not change its organization as a school foundation within the prescribed period under Article 2 of the Addenda of the Private School Act. However, the purpose of this case is not different from that of a school foundation in establishing and operating a private school, and it was used for educational business by disposing of the real property in this case, such as the above recognition, and it was used for new establishment of a kindergarten foundation and its site purchase expenses. According to the latter part of Article 2 of the Addenda of the Private School Act, it should have been applied mutatis mutandis to a non-taxable foundation which continued to maintain the established school due to special circumstances such as in the case of a plaintiff foundation, the purpose of this case is to restrain the establishment of a non-taxable property by the above Article 2 of the Act.

Therefore, the disposition imposing corporate tax, special surtax and defense tax on the transfer margin of the real estate of this case on the ground that the defendant does not constitute the non-taxable income of the above legal foundation, is an illegal disposition that is imposed by mistake and mistake of the taxable subject of taxation, and its revocation may not be exempted without any further understanding on other points.

Therefore, the plaintiff's claim of this case seeking the revocation of the above disposition is reasonable, and it is decided as per Disposition by applying Article 14 of the Administrative Litigation Act and Article 89 of the Civil Procedure Act to the burden of litigation costs.

Judges Kim Jong-chul (Presiding Judge)