propriety of a disposition imposing a church on deeming it as one resident under the Income Tax Act;

A church's representative is designated as a taxpayer and the transfer income tax of this case is not imposed on his personal property, but the income from the transfer of the real property of this case belongs to the key church, and thus, the disposition of transfer income tax of this case was imposed on the taxpayer.

Article 13 (Unincorporated Organizations)

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

All of the records of this case and the judgment of the court below and the grounds of appeal were examined, but it is clear that the assertion on the grounds of appeal falls under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal and therefore, the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per Disposition by the assent

[Seoul High Court Decision 2007Nu26232, Oct. 13, 2008]

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant's imposition of capital gains tax of KRW 34,363,430 against the plaintiff on June 27, 2005 shall be revoked.

1. The reasoning for the court’s explanation concerning the instant case is as stated in Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act, since the reasoning for the judgment of the first instance is the same as that for the judgment of the court of first instance other than the following.

2. The plaintiff asserts that most churches currently operate the same system and organization regardless of whether they obtained approval from the tax authorities under Article 13(2) of the Framework Act on National Taxes, and that it is non-taxation to the church that obtained such approval from the tax authorities, and that it is against the principle of fair taxation and good faith as it imposes tax on the same entity that is not consistent with the principle of equity.

However, Article 13(2) of the Framework Act on National Taxes provides that an unincorporated association, foundation, or other organization that satisfies certain requirements and obtains approval from the head of a competent tax office in the application of the tax law to specify the kinds of taxation and taxable objects subject to taxation due to the nature of the tax law is a corporation (see, e.g., Supreme Court Decision 2000Du1652, Feb. 8, 2002). Accordingly, the determination of taxation and non-taxation does not violate the principle of fair taxation and good faith, and thus, the aforementioned assertion is without merit.

Furthermore, the plaintiff asserts that the properties of the church are owned by the members of the church as collective ownership under the Civil Act and the church does not distribute profits to the members as non-profit organizations, but it is deemed that the real estate disposal revenue of the plaintiff church belongs to the representative of the plaintiff church, and that the imposition of capital gains

However, the defendant did not impose the transfer income tax of this case on the representative of the plaintiff church to be designated as a taxpayer and to perform his duty to pay taxes with his personal property, but deemed that the income from the transfer of the real property of this case belongs to the plaintiff church, and imposed the transfer income tax of this case on the plaintiff as a taxpayer, so the above argument different from

Finally, the plaintiff church registered No. 89 in the Code No. 89 in accordance with the non-taxation requirements from April 5, 1980, and even 00 years old, the plaintiff deemed the plaintiff as a public interest corporation and was exempted from the income tax on the disposal of the real estate used for its own business before the disposition of this case. Therefore, imposing the transfer income tax on the disposal of this case is contrary to the customary constitution or customary law.

However, as asserted by the Plaintiff, there is no customary constitution or customary law that the organization registered with the competent tax office No. 89 of the code number is exempt from the income from the disposal of real estate used for its own business. Therefore, the above assertion is without merit.

3. Therefore, the judgment of the court of first instance is justifiable, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachmentcheon District Court 2007Guhap2016 ( August 30, 2007)]

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of capital gains tax of KRW 34,363,430 for the Plaintiff on June 27, 2005 shall be revoked.

1. Circumstances of dispositions;

A. On June 28, 1995, the Plaintiff completed the registration of ownership transfer with respect to ○○○○○○-dong 429-2 1,484 square meters (hereinafter “the instant real estate”) on the ground of an agreement on the acquisition of public land on April 13, 2004, and completed the registration of ownership transfer with respect to the instant real estate on the ground of an agreement on the acquisition of public land on March 4, 2004.

B. On June 27, 2005, the Defendant imposed KRW 34,363,430 of the transfer income tax for the transfer of the instant real estate to the Plaintiff on the ground that the Plaintiff does not fall under the “organization considered as a corporation” under Article 13 of the Framework Act on National Taxes and constitutes the “resident” under Article 1(3) of the Income Tax Act at the time of transferring the instant real estate (hereinafter “instant disposition”).

C. On September 22, 2005, the plaintiff requested a judgment with the National Tax Tribunal on Sep. 22, 2005, but was dismissed on June 1, 2006.

[Ground for Recognition: Facts without dispute, Eul-1, Eul-2, 3 evidence, Eul-1, Eul-2's evidence, the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful on the grounds of the above disposition and the related Acts and subordinate statutes, and the plaintiff asserted that the disposition of this case is unlawful, since the plaintiff church is a non-profit domestic corporation that is not operating a profit-making business as an unincorporated association or foundation corresponding to the "organization deemed a corporation" under Article 13 of the Framework Act on National Taxes, the real estate of this case directly used for the proper purpose business is not subject to taxation, such as transfer income tax, and thus the disposition of this case is unlawful, and even if the plaintiff church is subject to transfer income tax, since the real estate of this case is not a "organization deemed a corporation" under Article 13 of the Framework Act on National Taxes, the disposition of this case is ultimately unlawful.

B. Relevant statutes

same as separate entry.

C. Determination

(1) Whether the plaintiff church constitutes "organization deemed a corporation" under Article 13 of the Framework Act on National Taxes

(A) In full view of the statement of Eul evidence 4 and the purport of the whole argument, the plaintiff made a decision on the same day after closing its business on July 4, 2005, through the resolution of the ○○○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○).

(B) Regarding this, even if the plaintiff is a non-legal entity, the purport of Article 13(1)1 of the Framework Act on National Taxes is deemed to be an organization deemed a legal entity under the tax law when the competent authority grants permission or authorization for establishment. Thus, if the plaintiff does not require permission for establishment as in the case of the plaintiff, it can be viewed as an organization deemed a legal entity under the tax law even without permission. However, the purport of Article 13(1)1 of the Framework Act on National Taxes seems to be to be to recognize it as an organization under the tax law only when the competent authority grants permission or authorization, regardless of the necessity of permission for establishment. Thus, this part of the plaintiff's assertion is groundless.

(C) In addition, the plaintiff asserts that the plaintiff church constitutes a foundation which has the basic property contributed for religious activities, and therefore constitutes an organization deemed a juristic person under Article 13 (1) 2 of the Framework Act on National Taxes. However, as seen above, the plaintiff church is an unincorporated association and its properties belong to the collective ownership of the members, and the members may use and benefit from the church properties subject to the collective ownership right within the scope of the purpose of each church activity (see Supreme Court Decision 91Da1226, Jan. 19, 193). If such a church is deemed to have the character of an unincorporated foundation together with the nature of an unincorporated foundation, it would be contradictory in itself as the plaintiff church's collective ownership of real estate which is the church property and at the same time become a separate ownership of a foundation which is not a juristic person, and it is likely to cause confusion as well as to cause confusion in its ownership. Thus, it cannot be deemed that the plaintiff church is an unincorporated foundation at the same time, and this part of the plaintiff's assertion is without merit.

(D) Therefore, it is difficult to see the Plaintiff as an unincorporated foundation, and it is not an unincorporated association established or registered with the permission or authorization of the competent authority, and it is not approved by the head of the competent tax office. Accordingly, the disposition of this case on which the Plaintiff imposed capital gains tax by deeming the Plaintiff as a resident under the Income Tax Act is legitimate, since it does not fall under the organization deemed as a corporation

(ii)The plaintiff's assertion of non-taxable practices;

The plaintiff argues that the disposition of the real estate used for its proper business to a church or religious organization regardless of the permission for establishment or registration for incorporation is unlawful since the disposition of this case violates the non-taxable practice. Thus, the "tax law interpretation or practice of national tax administration" generally accepted by the taxpayer is accepted as just by the general taxpayer who is not a specific taxpayer, and it is not unreasonable for the taxpayer to trust its interpretation or practice. The burden of proving such interpretation or practice is the taxpayer who is the claimant (see, e.g., Supreme Court Decisions 91Nu13670, Sept. 8, 1992; 94Nu6574, Sept. 8, 1992; 94Nu6574, etc.); and there is no evidence to acknowledge that there exists a non-taxable practice as alleged by the plaintiff, and there is no reason for the plaintiff's assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case is without merit and it is so decided as per Disposition.