Supreme Court-2012-Du-8977 ( December 23, 2015)

Income earned by a withdrawing partner's account of his/her equity shares shall be the business income or capital gains of the withdrawing partner.

Income earned by a withdrawing partner by transferring his/her shares in the remaining partnership property to another member and obtaining a part of partnership property shall be the business income or capital gains of the withdrawing partner.

Article 43 of the Income Tax Act (Special Cases concerning Calculation of Joint Business Income)

2016Nu126 global income and revocation of disposition

BB

Doegi Tax Director

Suwon District Court Decision 201Guhap1727 Decided August 25, 2011

Seoul High Court Decision 2011Nu32777 Decided March 30, 2012

Supreme Court Decision 2012Du8977 Decided December 23, 2015

February 24, 2016

March 16, 2016

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition of global income tax of KRW 00,000,000 against the Plaintiff on May 17, 2010 shall be revoked.

3. All costs of the lawsuit are borne by the Defendant.

The same shall apply to the order.

1. Details of the disposition;

The court's explanation on this part is identical to the corresponding part of the reasons for the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, since the reasons for this decision are the same as the corresponding part of the reasons for the judgment of the court of first instance (Article 2, 2,

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The dividend income stipulated in Article 17 of the Income Tax Act refers to a dividend or share of profits or a surplus distributed from a corporation to shareholders, employees, or other investors, dividend of construction interest, deemed dividend, etc. However, the disposition of this case based on the premise that the plaintiff obtained dividend income as to the real estate in this case, which was merely a change in the form of ownership by dividing the real estate in the original co-ownership as a sole-ownership, when the plaintiff withdraws from a joint business

B. Relevant statutes

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

C. Determination

1) Whether the dividend income is dividend income

In a case where a partner receives a part of the partnership’s property from the partnership’s account while withdrawing from the partnership, the partnership’s relationship is terminated as if a part of the partnership’s property was transferred (Article 274(1) of the Civil Act). As such, the calculation of the share is deemed to have been exchanged or traded among the partnership’s partners who withdraw from the partnership under tax law and other partners who continue to conduct a joint business with the partnership’s property. However, the income earned by the partnership’s transfer of real property, which is the partnership’s property, shall be business income (Article 87 and Article 43 of the former Income Tax Act), and shall be subject to capital gains if it is a business inventory (Article 118 of the former Income Tax Act). Since the nature of the income earned by the withdrawing partner’s transfer of his/her share on the remaining partnership property to other partners and obtain some of the partnership property at the time of withdrawal is different, it becomes the business income or capital gains of the withdrawing partner

한편 구 소득세법 제17조 제1항 제7호는 '제1호 내지 제6호의 소득과 유사한 소득으로서 수익분배의 성격이 있는 것'을 배당소득으로 규정하고 있다. 그런데 조합체가 공동사업을 통하여 얻는 일정한 소득금액은 각 조합원의 지분 또는 손익분배비율에 따라 분배되어 조합원들 각자에게 곧바로 귀속되고 개별 조합원이 직접 납세의무를 부담하므로(구 소득세법 제87조, 제43조, 제118조) 개별 조합원들이 조합체로부터 수익분배를 받는다고 할 수 없으며, 어느 조합원이 탈퇴하면서 지분의 게산으로 일부 조합재산을 받는 경우에도 그로 인한 소득은 곧바로 탈퇴한 조합원에게 귀속할 뿐이다. 따라서 탈퇴한 조합원이 탈퇴 당시 지분의 계산으로 얻는 소득은 구 소득세법 제17조 제1항 제3호, 제7호, 제2조 제1항이 정한 배당소득에 해당한다고 할 수 없다(대법원 2015. 12. 23. 2012두8977 판결 참조).

Examining the facts acknowledged earlier in light of the aforementioned legal principles, the Plaintiff acquired the instant real estate upon withdrawal from the partnership relationship and on the account of its shares. Since the instant real estate was acquired by the partnership for the purpose of running a business such as selling in lots, the Plaintiff’s income obtained by acquiring the instant real estate by transfer constitutes business income.

Therefore, the disposition of this case is unlawful since it was imposed by deeming the Plaintiff’s income on the instant real estate as the dividend income even though it constitutes business income.

2) Whether the grounds for disposition are lawful

A) Summary of the Defendant’s assertion

Even if the Plaintiff’s ground for disposition of this case was modified as the income from the instant real estate acquired by the account of shares following the withdrawal from the business relationship, the disposition of this case is legitimate within the scope of the legitimate tax amount due to the modification.

B) Determination

According to Article 30(1) of the Administrative Litigation Act, a final and conclusive judgment revoking an administrative disposition is binding on an administrative agency that is a party to the relevant case. As such, it is not allowed for an administrative agency that is a party to the final and conclusive judgment to take any administrative disposition that conflicts with the final and conclusive judgment on the grounds prior to closing of arguments at a fact-finding hearing of the relevant administrative litigation, and such administrative disposition is void as it is significant and obvious (see, e.g., Supreme Court Decision 90Nu3560, Dec

Examining the facts acknowledged above in light of the above legal principles, although the cancellation judgment on the previous disposition of this case (hereinafter "the previous judgment of this case") rendered on April 1, 2006 by deeming the income earned by the plaintiff as the business income of this case as the previous disposition of this case, changing the grounds for the disposition of this case on the ground that the defendant's income acquired by the plaintiff as to the real estate of this case was not the dividend income but the business income, which is not the dividend income after remanding the case, constitutes the previous disposition of this case, it goes against the previous judgment of this case which became final and conclusive under the facts identical to the previous disposition of this case. Accordingly, the defendant's change of the above grounds for disposition is not allowed, and this part of the defendant's claim of this case is without merit.

3) Sub-decisions

Therefore, the instant disposition is deemed to be a single mother or illegal.

3. Conclusion

If so, the plaintiff's claim should be accepted with due reasons, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and the disposition of this case