A. Whether an investment in kind in a union constitutes the transfer of assets subject to capital gains tax (affirmative)

(b) Whether a disposition imposing capital gains tax on a person who has invested in kind in a company that newly constructs and sells a tenement house can be imposed double taxation (negative)

(c)the omission of taxation for a given period and the establishment of non-taxable practices;

A. Assets invested by a partner under the partnership agreement shall be incorporated into a partnership property separate from that of an investor’s personal property, and an investor shall acquire the status of an investor as a partner in return for the investment. Thus, an investment in kind of assets to a partnership constitutes the transfer of assets as provided in the main sentence of Article 4(3) of the Income Tax Act, which is the transfer of assets

(b) A business that newly constructs a tenement house and sells it in lots is a construction business under the Income Tax Act and its income is subject to income tax, but its business income is calculated on the basis of the purchase price of raw materials in the former part of Article 60(1)1 of the Enforcement Decree of the Income Tax Act and the asset value at the time of investment in the cooperative corresponding to the incidental expenses. Therefore, since the capital gains accrued by a person who has invested in the cooperative is deducted from necessary expenses in calculating the business income of the cooperative, the capital gains tax for the above invested assets and the burden of the association's business

C. The fact that there was an omission of taxation for a given period alone cannot be deemed as a practice of national tax accepted by taxpayers as a general rule under Article 18(2) of the Framework Act on National Taxes, and there is room to acknowledge that the practice of non-taxation has been established when, even though the tax authority knew of the fact that it could be taxed, there was a speech or behavior suggesting the taxpayer to impose tax without taxation, and there is a circumstance to recognize that the taxpayer is not unreasonable to trust it by failing to impose it for

(a) Article 4 of the Income Tax Act; Article 31 of the Enforcement Decree of the Income Tax Act; Article 60 of the Enforcement Decree of the Income Tax Act; Article 14(c) of the Framework Act on National Taxes

A. Supreme Court Decision 84Nu392 delivered on December 26, 1984, 84Nu549 delivered on February 13, 1985, and 84Nu680 delivered on April 23, 1985. Supreme Court Decision 80Nu6 delivered on April 10, 1980, 81Nu153 delivered on April 26, 1983

Plaintiff

Head of Seogsan Tax Office

Daegu High Court Decision 83Gu283 delivered on July 3, 1984

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal by the defendant litigant are examined.

(1) According to the reasoning of the judgment below, on April 10, 1979, the court below concluded a partnership agreement with three persons including the non-party, etc. to newly construct and sell row houses on the ground of Busan Seo-gu and 778.7 square meters of land. The plaintiff evaluated the above site as 28,50,000 won and invested in kind, and three persons including the above non-party, etc. shall invest the above site as 28,50,000 won, and newly construct and sell the house, and the above three persons including the above non-party, etc. shall have a certain right as to the assets invested in kind, as well as the shares of other union members are subject to limitations under the law, it cannot be deemed that the above assets were transferred to other union members beyond the control of the investors, and since the investors did not acquire the above consideration for investment in kind, it cannot be deemed that the transfer income tax imposed on the remaining shares of the plaintiff, other than the above shares, constitutes a violation of the taxation of capital gains tax under the Enforcement Decree of the Local Tax Act.

(2) However, since assets invested by a partner under the partnership agreement consisting of assets separate from the assets of an investor, and an investor acquires the status of a partner as the price for such investment, the investment in kind of assets to a cooperative constitutes the transfer that is the cause of taxation of capital gains tax (see Supreme Court Decision 84Nu392 delivered on December 26, 1984; Supreme Court Decision 84Nu549 delivered on February 13, 1985; Supreme Court Decision 84Nu680 delivered on April 23, 1985; Supreme Court Decision 84Nu680 delivered on April 23, 1985; Supreme Court Decision 84Nu680 delivered on April 23, 198).

Meanwhile, as in the case of this case, since a business that newly constructs a tenement house and sells it in lots constitutes a construction business under the Income Tax Act, its income is the same as the original adjudication, but its business income is calculated on the basis of the purchase price of raw materials under the former part of Article 60(1)1 of the Enforcement Decree of the Income Tax Act and the asset value at the time of the investment in the cooperative corresponding to the incidental expenses, so the transfer income accrued from the Plaintiff who has invested in the cooperative shall be deducted from necessary expenses in calculating the business income of the cooperative, so the transfer income tax burden on the above invested assets and the business income burden on the cooperative shall not be double taxation, and the fact that there was an omission of taxation for a certain period cannot be deemed as a national tax practice generally accepted by the taxpayers under Article 18(2) of the Framework Act on National Taxes, and there is no reason to acknowledge that it was unreasonable for the tax payer to believe that it was not taxed for a certain period of time for the public interest, or that it was not taxed for a certain period of time by the taxpayer.

(3) Therefore, the judgment of the court below that held that the Plaintiff’s act of investing land in this case is not considered as transfer of assets, and in this case, it is only subject to business income tax, and it is also in violation of the principle of retroactive taxation prohibition, not subject to transfer income tax, and the disposition of this case is also in violation of the principle of retroactive taxation under the Income Tax Act, which affected the conclusion of the judgment.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)