Seoul Administrative Court-2016-Gu Group-5305 (2017.03.07)

Cho Jae-2015-west-5391 ( December 22, 2015)

If a partner is not specifically determined, it cannot be deemed that the partnership was established and the investment in kind was made.

In order to establish a partnership under the Civil Act, two or more members should be specified. Since the date of the second business agreement, it can be seen that there was an investment in kind, i.e., an investment in kind since the association was established.

The exclusion period for national tax assessment under Article 26-2 of the Framework Act on National Taxes

Article 162 of the Enforcement Decree of the Income Tax Act: Time of Transfer or Acquisition

2017Nu42172 Revocation of disposition of imposing capital gains tax

Han ○

○ Head of tax office

Seoul Administrative Court Decision 2016Gudan53305 Decided March 7, 2017

August 17, 2017

September 28, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 000 on May 7, 2015 that the Defendant rendered to the Plaintiff on May 7, 2015 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows, and the argument that the plaintiff supplements in the trial is identical to the reasoning of the judgment of the court of first instance, except for the argument that the plaintiff supplements in the trial as set forth in the following paragraph (2). As such, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

Parts to be removed or added.

○ The second part of the second part of the judgment of the court of first instance added "in the project district for the creation of the ○○ New City" to "in the project district for the creation of the ○○○ Urban City", and "in the same way," "in the same way."

○ At the time of 16th of the fifth judgment of the first instance, the phrase “time” shall be added to the phrase “where the Plaintiff belongs.”

○ The fifth judgment of the first instance court was "from 2005 to 2006" and "round February 23, 2007."

The first instance court's decision was deleted "not .......................................................................................................

○ The 8th judgment of the first instance court added “Plaintiff 1, 2016 February 10, 2016” following the 14th judgment.

2. Determination as to the part claimed by the Plaintiff in the trial

A. The plaintiff's assertion

The props of the instant land, including the Plaintiff, have clearly expressed their intent to operate the prop joint business from 2005 to 2006 at the time of concluding the first business agreement, and the said business agreement constitutes a partnership agreement under the Civil Act, satisfying all the requirements for establishment of the association, including the purpose of the joint business management and the investment obligation of each party, and details related to the ratio of profit distribution. In fact, AA, after the conclusion of the first business agreement, has carried out subsequent procedures under the first business agreement, including the conclusion of the loan business agreement related to the land for fishermen’s livelihood and the conclusion of the second business agreement, for the purpose of implementing the joint business from 2007 to 207.

Therefore, the Plaintiff invested in kind the instant land at the time of the first business agreement, and the second business agreement and the instant real estate management trust agreement merely correspond to the construction process of multi-family housing under the first business agreement, and cannot be deemed a separate association agreement or investment in kind. Therefore, the instant disposition based on the premise that the Plaintiff’s investment in kind was made around 2007, which was made after 7 years from the exclusion period of imposition, is unlawful.

B. Determination

1) Comprehensively taking into account the overall purport of arguments as to Gap evidence 9, Gap evidence 10, 11-3, Gap evidence 12-12-4, Gap evidence 13, 14-1, Gap evidence 15-2, Gap evidence 15 submitted by the court of the trial, Gap entered into an agreement on loans related to the fishing life countermeasures site 2005 so that financial institutions can be loaned to the prop pursuant to the first business agreement between BB bankCC head, Eul entered into an agreement on loans related to the fishing life countermeasures site 2005, Gap bears interest on the prop including the plaintiff pursuant to the terms of the first business agreement, Gap also entered into an architect office D, Eul, and a contract on preparation of the construction plan for the fishing life countermeasure site 2,000, Eul concluded an agreement on June 9, 2005 with Eul, and entered into an explanatory meeting with Gap on March 2, 2006, the agreement on the new construction of a complex building 2,2006 and Eul on March 26, 2006.

2) However, to establish a cooperative under the Civil Act, two or more members should be specified first of all in order to establish the first business agreement and the second business agreement as seen earlier, and the process and contents thereof, in particular, in the case of the first business agreement, the securing of the site for the business through the loan of the purchase fund for the land for taking measures, which serves as the foundation for the progress of the prop-joint business, and the opening date of the joint construction association on the land of 00-00 to which the Plaintiff belongs, is the first day of May 1, 2007, it is difficult to view that the association was already established on February 10, 2006, which is the time when the Plaintiff claims for investment in kind, and there is no evidence to acknowledge otherwise.

3) In addition, as seen in the above 1) in the case of various businesses conducted before and after the conclusion of the first business agreement with the props on the land 00-00 including the Plaintiff, it is not always a duty of the nature that can proceed only after the establishment of the association, but a business executor at the same time at the beginning of the business, which can be seen as a duty of the nature that can proceed simultaneously with the establishment of the association at the same time. Thus, the circumstance where the aforementioned various businesses were conducted is not a critical circumstance that can be seen as having already been established at the time of the first business agreement.

4) Therefore, we cannot accept the Plaintiff’s assertion on this part.

2. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.