Whether a partner of the instant association is liable to pay global income tax due to the ownership of the player land usage fee.

The association of this case is liable to pay income tax according to the income amount distributed to each joint proprietor, since the method of distributing profits or the ratio of distributing profits to the association members is specified and actually distributed to each joint proprietor.

Article 13 of the Framework Act on National Taxes, Article 2 of the Income Tax Act

Seoul Administrative Court 2017Guhap76159 global income and revocation of disposition

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AA Head of the Tax Office

May 4, 2018

June 1, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Each imposition of the global income tax imposed by the Defendant for the Plaintiff, O.O. (including additional taxes) and OO. (including additional taxes) for the global income tax for the Plaintiff, and the global income tax for the global income tax for the OO year shall be revoked.

1. Details of the disposition;

A. The Plaintiff et al. (hereinafter referred to as “members”) established OO.O.O.O.O.O.O.M. association (hereinafter referred to as “the instant association”) for the purpose of newly building a commercial building on the instant land and selling in lots and leasing it. The instant association was established for the purpose of running the sales and leasing business by constructing a commercial building on the instant land.

B. The instant association newly constructed OO.O.O.O.O. building (hereinafter referred to as the “instant commercial building”) on the instant land, and completed the registration of ownership preservation under the name of OO.O.O., the instant association. The instant association, while selling OO store around 00, was registered under the name of the Plaintiff and otherO. As the instant land was registered under the name of the Plaintiff, etc., the association granted the buyer the right to use the instant land for OO year between the buyer and the buyer, and received land usage fees in advance from the buyer (hereinafter referred to as the “instant land use contract”), and received land usage fees in advance from the buyer, and the Plaintiff did not receive land use fees in advance (hereinafter referred to as “the instant royalty”). C. The Defendant was a corporation that deemed the instant association under the Framework Act on National Taxes, and did not include the Plaintiff’s annual profit distribution ratio or profit distribution ratio for the Plaintiff’s global income tax (hereinafter referred to as the “OO’s profit distribution ratio”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal, but O.O.O.O.O. was dismissed.

[Reasons for Recognition] Unsatisfy, Gap's Nos. O, Eul's each entry, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The association of this case is an unincorporated association with no legal personality selected and appointed by its representative and the method of distributing profits or the ratio of distributing profits is not specified, and thus becomes a resident under the Income Tax Act and thus becomes the subject of independent tax liability from its members. Thus, the Plaintiff, a member of the association of this case, has no income tax liability for the

2) Even if the instant association is not the instant association but the Plaintiff, a member of the Plaintiff, is liable to pay income tax on the key usage fee, the instant usage fee, including the key usage fee, was fully disbursed as necessary expenses of the relevant cooperative, and there

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether the Plaintiff is liable to pay income tax on the pertinent fee

A) Article 13(1) of the Framework Act on National Taxes provides that "unregistered associations, foundations, or other organizations established with the permission or authorization of competent authorities among unincorporated associations, foundations, or other organizations, or registered with the competent authorities pursuant to Acts and subordinate statutes (hereinafter referred to as "organizations which are not juristic persons"), or foundations with basic property contributed for the purpose of the public interest, which do not distribute profits to its members, shall be regarded as juristic persons and shall not be subject to this Act and tax-related Acts." Article 13(2) of the same Act provides that "any unincorporated associations, foundations, or other organizations, other than juristic persons, which are deemed juristic persons pursuant to paragraph (1) of the same Article, appoint a representative or manager with the provisions concerning organization and operation, and independently own and manage profits and property in their own account and name, which do not distribute profits to its members and which have been applied for approval by the representative or manager to the head of competent tax office, and thus this Act

Article 2 (3) of the former Income Tax Act (amended by Act No. 11611, Jan. 1, 2013) provides that "any organization other than any organization deemed a corporation under Article 13 (1) of the Framework Act on National Taxes, which is not a corporation under Article 13 (4), shall be governed by this Act, considering it as a resident or non-resident." Article 2 (1) and (2) of the former Enforcement Rule of Income Tax (amended by Ordinance of the Ministry of Strategy and Finance No. 323, Feb. 23, 2013) of the former Enforcement Rule of Income Tax Act (amended by Ordinance No. 323, Feb. 23, 2013), among associations, foundations and other organizations deemed residents or non-residents, whose representative or manager is appointed but the method of distributing profits or the ratio of distributing profits is not determined, shall be deemed as one resident or non-resident and the Act shall be applied in cases where profits are distributed in fact, even if the method of distributing profits or ratio is not expressly determined.

Meanwhile, Article 2 (3) of the current Income Tax Act (amended by Act No. 11611 of Jan. 1, 2013) provides that "an organization, other than an organization deemed a corporation under Article 13 (1) of the Framework Act on National Taxes, which is not a corporation, shall be deemed a resident if its principal office or actual business management place is located in the Republic of Korea, or in other cases, it shall be deemed a non-resident, and this Act shall apply in other cases, as prescribed by Presidential Decree." Article 3-2 of the Enforcement Decree of the Income Tax Act delegated by the Act provides that a non-corporate entity shall be deemed a non-corporate entity in which the method of distributing profits or the ratio of distributing profits between its members is determined or it is confirmed that its actual profits are distributed." Article 2 (3) of the current Income Tax Act provides that "if the method of distributing profits or the ratio of distributing profits between its members is not

그리고 소득세법 제43조 제1, 2항은 공동사업에서 발생한 소득금액은 당해 소득이 발생한 공동사업장별로 그 소득금액을 계산하되, 공동사업자 간에 약정된 손익분배비율 또는 지분비율에 의하여 분배되었거나 분배될 소득금액에 따라 공동사업자별로 그 소득금액을 분배하도록 규정하고 있다.

In full view of the contents and purport of the aforementioned relevant Acts and subordinate statutes, in cases where an organization, other than a juristic person, under Article 13(1) of the Framework Act on National Taxes, is not an organization deemed a juristic person under Article 13(4), income tax under the Income Tax Act shall be imposed; however, in cases where an organization is a non-profit organization that does not distribute profits to its members, such organization shall be deemed one resident who is liable for tax payment; and in cases of a profit-making organization that distributes profits to its members, such organization shall not be deemed as one resident who is liable for tax payment, and as prescribed in Article 43(1) and (2)

B) We examine whether the instant union has determined the method of distributing profits or the ratio of allocating profits to the union members or distributed de facto profits to the union members.

Members, including the Plaintiff, have their respective shares in respect of the property of the instant trade association (Plaintiffs O%, AAO%, BBO%, CCO, etc.), and the instant trade association has distributed income from the instant trade association in proportion to the shares of its members. The instant trade association did not have reported and paid income tax on the instant trade association, and the members, including the Plaintiff, filed and paid comprehensive income tax on the instant trade association from the OO of the completion of the instant trade association to the OO of the amount calculated in proportion to the rental period (O year) and the share ratio.

According to the above facts, the association of this case has set the method of distributing profits or the ratio of distributing profits to its members and distributed profits accordingly. Therefore, it is reasonable to deem that the association of this case is not an organization deemed a corporation under Article 13 (1) of the Framework Act on National Taxes among non-corporate organizations under Article 13 (4) of the same Act.

C) Therefore, members, including the Plaintiff, are joint business operators, who are liable to pay income tax on the amount of income distributed to each of the instant usage fees pursuant to Article 43(1) and (2) of the Income Tax Act. The Plaintiff is liable to pay income tax on the key usage fees.

2) Whether the Plaintiff’s business income exists

Article 39(1) and (6) of the Income Tax Act and Article 51(3)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 25193, Feb. 21, 2014) stipulate that the year to which the total amount of income and necessary expenses are reverted shall be the taxable period in which the date when the total amount of income and necessary expenses are determined are determined, and that the total amount of the rent for the rent for the rent of the real estate leased shall be the total amount of the tax period calculated by dividing the amount of the rent by the number of months in the contract period by the number of months in the contract period. Thus, the pertinent fee for the

On the other hand, members, including the Plaintiff, filed a return and payment of the comprehensive income tax on the royalty of this case from the completion of the commercial building of this case to the OOOO, as seen earlier, and most necessary expenses claimed by the Plaintiff appear to be the construction cost of the commercial building of this case. On the other hand, the deficit incurred for the construction cost of this case can be carried over for five years from the time of the completion and sale of the commercial building of this case pursuant to Article 45 (2) of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008). Thus, it cannot be attributed to the necessary expenses for the OO year and OO year, which are the taxable period of the disposition of this case.

Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.