Suwon District Court-2017-Gu Partnership-60988 (Law No. 24, 2017)

The taxpayer must prove that fixed assets are fixed assets used directly for proper purpose business for at least three consecutive years as of the date of disposal.

As of January 15, 2016, it is difficult to view that it was sufficiently proven that the second land of this case was used directly for the proper purpose business for at least three years as of January 15, 2016, and there is no other evidence to acknowledge it otherwise.

Article 2 of the Enforcement Decree of the Corporate Tax Act

2017Nu70955 Revocation of Disposition of Rejecting Corporate Tax;

○○ ○ Crons

○ Head of tax office

Suwon District Court Decision 2017Guhap60988 Decided August 24, 2017

2018.23.9

2018.06.27

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

On March 4, 2016, the defendant revoked corporate tax belonging to the year 2016 against the plaintiff *** a disposition rejecting a request for correction of the plaintiff 2016.

2. Purport of appeal

The same shall apply to the order.

1. Quotation of judgment of the first instance;

The reasons for this Court concerning this case are as stated in the reasoning of the judgment of the first instance except for the partial dismissal of the judgment of the first instance as stated in the following Paragraph 2. Thus, the meaning of the language used in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter the meaning of the language used in this case is the same as the judgment of the first instance).

2. Parts to be dried;

○ The last day of the second parallel shall be "the same day" as " December 18, 2015."

○ The 4th page 9 of the Corporate Tax Act (amended by Act No. 1522, Dec. 19, 2017; hereinafter the same shall apply) shall be amended to “former Corporate Tax Act (amended by Act No. 1522, Dec. 19, 201; hereinafter the same shall apply)”, and the 18th section of the Corporate Tax Act shall be amended

○ 4. The 5th parallels 20 to 20th parallels shall be followed as follows:

“B. Determination”

1) According to Article 3(3)5 of the former Corporate Tax Act and Article 2(2) of the former Enforcement Decree of the Corporate Tax Act, income generated from the disposal of fixed assets of non-profit domestic corporations shall be included in the scope of taxable income subject to corporate tax, in principle, but income generated from the disposal of fixed assets for at least three consecutive years as of the date of disposal of the fixed assets, shall be excluded from the scope of taxable income. In light of the regulatory form and text, the fact that the fixed assets are "fixed assets used directly for the proper purpose business for at least three consecutive years as of the date of disposal" should be proved by the taxpayer that the fixed assets are excluded from the scope of taxable income (i.e., the method of calculating the specific period can be determined differently within the scope of the legislative discretion in consideration of the legislative intent of each individual statute, and (ii) the phrase "for at least three consecutive years as of the date of disposal" cannot be interpreted as satisfying the above requirements, and (iii) Item 5 of Article 3 of the former Corporate Tax Act is excluded from the income of fixed assets directly generated from the purpose business.

2) In the Plaintiff’s agreement, the purpose of this case’s land before the division is 2 months prior to the transfer of this case’s land, i.e., maintenance and management of shipbuilding graves, i., expansion and preservation of property of the door, and ii) traditional construction of tradition. The Plaintiff’s inherent business on the notice at the time of approval as an organization deemed a juristic person pursuant to Article 13(2) of the Framework Act on National Taxes is ’the management and friendship of a tomb in the door.’ The land before the division of this case’s land is 7th of January 9, 2008, 200 remaining thereafter. The Plaintiff divided the land before the division of this case into the land of this case’s No. 1 and the land of this case’s 2nd of November 10, 2015, 2015, i.e., the land before the division of this case’s land into the land of this case’s No. 1 and the land of this case’s No. 1 and the entire 2nd of this case’s land.

3) However, when determining whether the forests and fields, which are graves of the ancestor group, are used directly for the proper purpose business of protecting the graves of the clans, the number of graves located in the forests and fields or the area of graves occupied by the plaintiff, cannot be deemed as an absolute standard. There is no evidence to deem that the plaintiff used the land before the subdivision for any other purpose. In light of the time of subdivision of the land of this case, even if the plaintiff appears to have used the land before the subdivision of this case, it cannot be deemed as having used the land for the proper purpose business of this case for more than 3 years from January 15, 2016, and there is no evidence to prove otherwise that the two graves of this case remaining after the subdivision of this case were used directly for the proper purpose business of this case.

4) Therefore, the instant disposition based on the premise that the revenue arising from the disposition of the instant land No. 2 is included in taxable income is lawful, and the Plaintiff’s assertion on a different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance differs from that of the defendant, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.