National Tax Service Review and Transfer 2010-0389 ( October 12, 2011)

Transfer income tax shall be imposed lawfully because it is not approved as a corporation.

Since the properties of a church belong to the collective ownership of the members and the members can use and profit from the church properties within the scope of the purpose of the church activities, it shall not be deemed a foundation without a legal personality, and since there was no approval as an organization deemed a corporation at the time of the transfer of land, it shall be deemed an organization deemed as a resident and the disposition

2011Guhap1892 Revocation of Disposition of Imposing capital gains tax, etc.

XXSIE

Head of Jinju Tax Office

October 20, 2011

November 24, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of capital gains tax of 26,536,963 won and special rural development tax of 492,845 won and special rural development tax of 2008, and imposition of capital gains tax of 73,598,107 won and special rural development tax of 1,366,296 won, which accrue to the Plaintiff on December 5, 2010 shall be revoked.

1. Details of the disposition;

A. On March 21, 2001, Jungju-si, acquiring and holding the land of this case on March 21, 2001 (hereinafter referred to as "one land of this case") and completed the registration of ownership transfer on the land of this case on January 25, 2008 on the ground of consultation on public land on January 18, 2008. ② On March 21, 2001, Jinju-si, Jinju-si, 00-0-407 square meters (hereinafter referred to as "the two land of this case"), and acquired the land of this case on May 1, 2007, and owned the land of this case on May 23, 2007 and owned the land of this case on May 31, 2007 (hereinafter referred to as "the two land of this case"), and completed the registration of ownership transfer on the land of this case on May 23, 2007 by adding the land of this case to 30,5005.

B. On July 28, 2010, the Defendant imposed capital gains tax of KRW 73,598,107 and special rural development tax of KRW 1,36,296 on the transfer of land of this case on the ground that “A” is the owner of land of this case, and the Plaintiff constitutes an organization deemed a corporation under Article 13 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same). Upon ex officio revocation of the above disposition, the Defendant imposed capital gains tax of this case on the Plaintiff on December 5, 2010 on the ground that the Plaintiff constitutes an organization deemed as a resident under Article 2(3) of the Income Tax Act, and thus, it constitutes an organization imposing capital gains tax of this case on the transfer of land of this case on the ground that the Plaintiff constitutes capital gains tax of KRW 73,598,107, and special rural development tax of this case on the transfer of land of this case.

C. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on December 29, 2010, but was dismissed on May 12, 201.

[Ground of recognition] Facts without dispute, Gap 1, 4 evidence, Eul 1 to 4 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff is a foundation with basic property contributed for the public interest under Article 13 (1) 2 of the former Framework Act on National Taxes, which meets the requirements prescribed in each subparagraph of Article 13 (2) of the former Framework Act on National Taxes, and is approved as a "organization deemed a corporation" from the defendant on July 16, 2009. Thus, the disposition of this case on a different premise is unlawful, even though there is no capital gains tax liability.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Article 13 (1) 2 of the former Framework Act on National Taxes provides that a foundation which has basic property contributed for the public interest and not registered shall be deemed a juristic person and shall be subject to the Framework Act on National Taxes and other tax-related Acts. In general, a church shall have the nature of an association consisting of the members with the purpose of worship, and the properties of a church shall belong to the collective ownership of the members, and the members shall be able to use and profit from the church properties which are the object of collective ownership within the scope of each church activity (see Supreme Court Decision 97Nu17261, Jul. 7, 199). Thus, even if the plaintiff cannot be deemed a juristic person without legal personality, it shall not be deemed a foundation. Accordingly, the plaintiff does not constitute "a foundation with basic property contributed for the public interest as stipulated in the above subparagraph 2." Thus, this part of the plaintiff'

(2) Next, Article 13(2) of the former Framework Act on National Taxes provides that "any unincorporated organization, other than an association, foundation, or other organization deemed a corporation under paragraph (1) of the same Article shall meet certain requirements, and the representative or manager shall be deemed a corporation subject to the application of this Act and other tax-related Acts." However, considering the overall purport of arguments in Gap 5, 6, and Eul 5, the plaintiff completed business registration (613-89-000) as a resident to the defendant on January 6, 199, and the date of business closure as of January 29, 209 was reported on the closure of business as of January 3, 199, and the plaintiff did not appear to be a corporation under Paragraph 1 of Article 13 of the former Framework Act on National Taxes with the approval of the first organization under Paragraph 2 of Article 13 of the former Framework Act as the representative of the corporation or the manager of the corporation under Paragraph 3 of the same Article without the approval of the plaintiff's business registration under Paragraph 1 of the former Framework Act.

(3) Therefore, the instant disposition imposing capital gains tax by deeming the Plaintiff as a resident under the Income Tax Act is lawful.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.