Diab01 Mine067 ( November 24, 2011)

dividend income that has distributed the profit by settling the joint business at the time of liquidation;

It is deemed that the profit was settled and distributed while liquidation of the business through the method of transferring real estate to one joint business operator by mutual agreement while acquiring real estate after concluding an agreement to divide the profit accrued from the joint business with the real estate acquired by joint investment, and operating the joint business, constitutes deemed dividend or constitutes dividend income.

2012Guhap751 Revocation of Disposition of Imposing capital gains tax

XX

Head of Maritime Tax Office

October 18, 2012

November 15, 2012

1. The Defendant’s imposition of capital gains tax of KRW 000 against the Plaintiff on December 1, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On September 200, Nonparty 1 and the Plaintiff (hereinafter collectively referred to as “Plaintiffs, etc.”) made an investment in cash by LA and the Plaintiff; HB made an agreement to distribute profits accrued from lease, management, and resale of real estate after acquiring real estate by providing labor, such as analysis of information on the sale and purchase of real estate and investment values, auction bidding, etc. (hereinafter referred to as “instant agreement”); and acquired real estate from the investment money as follows (hereinafter referred to as “real estate Nos. 1 through 4”).

(The following table omitted):

B. The Plaintiff et al. agreed to terminate the instant agreement on January 3, 2003, settled the total profit accrued during the period of the agreement at KRW 000, and distributed 000,000, and the largestA would transfer the ownership of the remaining real estate. Accordingly, the Plaintiff was paid part of the total amount of the investment collected at that time and the profit was paid at KRW 00.

C. As to this, the defendant acquired shares of each of the above real estate under the name of another person, and disposed of in accordance with the above agreement with the largestA and high-B, and thus, disposed of the equivalent amount of profit. On December 1, 2010, the defendant issued the disposition of this case, which decided and notified 00 won of capital gains tax of 2003 for the first and third real estate of this case against the plaintiff (in the case of the second real estate of this case, it was not included in the disposition of this case since capital gains tax was already decided and notified on December 30, 205).

D. Around December 8, 2010, the Plaintiff filed a tax appeal against the instant disposition, but was dismissed on November 24, 201.

E. Meanwhile, the head of the tax office levied tax on 000 won allocated to the high-B as other income.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 8, Eul evidence Nos. 1 through 6, 9 through 11 (including each number), Eul's testimony, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

Since the Plaintiff’s profit in excess of its investment 00 won has the nature of profit-sharing following the liquidation of joint business conducted by the Plaintiff, etc. through the instant agreement, it constitutes income other than capital gains. Even if the Plaintiff omitted the return of global income tax, even if it was omitted, the exclusion period of national tax assessment already exceeded the exclusion period, the instant disposition was unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) The legal nature of the instant agreement

A partnership agreement under the Civil Act may be deemed to be a contract under which two or more persons mutually invest to jointly operate a business, and the degree of achievement of common objectives can not be deemed to satisfy the requirements for establishment of a partnership (see Supreme Court Decision 2003Da60778, Apr. 9, 2004). Meanwhile, where several persons jointly purchase real estate, the legal relationship between the buyers may be limited to a simple joint purchaser as a co-ownership, and it may be purchased at the same company with several members (see Supreme Court Decision 2000Da30622, Jun. 14, 2002). If the purpose of a joint purchase is to acquire profits from resale, it would be intended that the land purchased from the same company for a joint project would belong to the property of the same company, not the joint purchaser, but to acquire profits from disposing of all the assets of the joint purchaser on account of all the co-owners, and if so, it would be possible to freely dispose of shares from 200 to 1400,000 shares.

As confirmed in the facts of recognition of the Health Unit as to this case, the plaintiff et al. acquired each of the real estate in the name of the largestA or a third party after concluding the agreement of this case that the plaintiff et al. would have divided 1/3 of profits generated from the lease, management, and resale of the real estate acquired by joint investment, and through this agreement, the joint business was liquidated by the method that the plaintiff et al. would operate the joint business, and there is no circumstance to deem that the plaintiff et al. would have acquired each of the real estate in the form of a trust in the name of an individual, since it is reasonable to deem that the plaintiff et al. purchased and acquired each of the real estate in this case, since the plaintiff et al. had a right to share based on the joint ownership and the right to share

2) The legal nature of the Plaintiff’s profit

As seen earlier, since the instant agreement constitutes a partnership business agreement, the agreement that the Plaintiff et al. agreed not to conduct a joint business on January 3, 2003 and the settlement of profits and allocating profits can be deemed as the dissolution of the partnership and the distribution of residual assets.

Therefore, the profit that should be paid to the plaintiff according to the distribution of the above remaining assets falls under the "amount exceeding the amount that the investor has paid to acquire by the relevant investment" under Article 17 (1) 3 and 17 (2) 1 of the former Income Tax Act (amended by Act No. 7006 of Dec. 30, 2003; hereinafter the same) and thus the value of the money and other property acquired by the investor due to withdrawal falls under the "amount exceeding the amount that the investor has paid to acquire by the relevant investment" or the "amount having the nature of profit distribution" under Article 17 (1) 7 of the same Act, and thus, it is subject to global income

3) Sub-determination

Therefore, even though the income tax should be imposed on the Plaintiff’s profit to be paid from the Dong enterprise following the liquidation of joint business falls under the dividend income, the Defendant’s disposition of this case imposing capital gains tax on the Plaintiff’s acquisition of real estate Nos. 1 and 3 as gains from the transfer of real estate co-ownership as an individual’s position is unlawful without further review.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.