Seoul Administrative Court-2017-Gu Partnership-4659 ( October 23, 2018)

Similar dividend income or capital gains;

In the event that the partnership is dissolved and the partnership's property is partially transferred to the partnership members on its account, income accrued therefrom shall immediately belong to the partnership members and shall not be deemed as dividend income.

Article 94 of the Income Tax Act: Scope of Capital Gains

2018Nu4152 Revocation of Disposition Rejecting global income tax rectification

Plaintiff, Appellants

AA

a) the Director of the Tax Office

July 5, 2018

August 28, 2018

1. Revocation of a judgment of the first instance;

2. The Defendant’s refusal disposition to rectify global income tax for the year 2013 against the Plaintiff on January 31, 2017 is revoked.

3. All costs of the lawsuit are borne by the Defendant.

The same shall apply to the order.

1. Details of the disposition;

With regard to this part, the "new construction and sale business" of 18th of the first instance judgment shall be "the business of this case", 3th of the 11th of the 3th of the 3th of the 3rd of the 3rd of the 3rd of the 3rd of the 20th of the 20th of the 20th of the 20th of the 20th of the 20th of the 1st of the 1st of the 1st of the 1st of the 1st of the 1st of the 1st of the 1st of the

2. Relevant statutes;

It is as shown in the attached Table related statutes.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant income amount constitutes “amount according to the ratio of distribution of profits and losses by joint investment business operators” under Article 17(1)8 of the former Income Tax Act (amended by Act No. 15225, Dec. 19, 2017; hereinafter the same). The instant income amount is the dividend paid as the instant business ends on May 2008, and regardless of whether dividends are paid, it is the income attributed to the year 2008, which is the end of the taxable period pursuant to Article 46(3)2 of the Enforcement Decree of the Income Tax Act, regardless of whether dividends are paid.

2) Even if the instant income does not fall under the amount according to the ratio of distribution of profits and losses of joint investment businessmen, the instant income amount is unlawful since joint business operators consisting of the Plaintiff, bb general construction, BB,CC, D and E (hereinafter “six persons including the Plaintiff”) agreed to dispose of the instant real estate, and bb comprehensive construction constituted “income generated from the real estate business” under Article 19(1)12 of the former Income Tax Act. bb comprehensive construction completed the registration of the instant real estate and used and profit-making from June 1, 2008. Thus, the instant income amount should be attributed to the income of 2008 pursuant to Article 48 subparag. 11 of the Enforcement Decree of the Income Tax Act.

3) Although the instant income amount does not constitute business income, it is deemed that it constitutes transfer income under Article 94 (1) 1 of the former Income Tax Act, since it is deemed that it constitutes transfer income under Article 94 (1) 1 of the former Income Tax Act. Thus, in this respect, the instant disposition is unlawful.

B. The nature of the instant income amount

1) Relevant legal principles

In the event of dissolution or delivery of a partnership's property, the relationship between the partnership's individual property is terminated (Article 274(1) of the Civil Act). As such, where a certain partner acquires real estate, he/she shall be deemed to have exchanged or traded the shares of the partnership partner and the real estate acquired by the partnership partner for the account following the termination of the partnership's partnership relationship, such as dissolution, etc. However, income earned by a partnership's transfer of real estate, which is a partnership's property, shall be business income (Articles 87 and 43 of the former Income Tax Act). If it is a business asset, it shall be business income (Article 118 of the former Income Tax Act) if it is a business asset, and it shall be subject to capital gains tax (Article 118 of the former Income Tax Act). Since there is no different nature of income earned by some partners from the transfer of one's own shares in partnership property, it shall be deemed that other partners' business income or capital gains, etc. in accordance with the composition of partnership property at the time of the partnership relationship.

그런데 조합체가 공동사업을 통하여 얻는 일정한 소득금액은 각 조합원의 지분 또는 손익분배비율에 따라 분배되어 조합원들 각자에게 곧바로 귀속되고 개별 조합원이 직접 납세의무를 부담하므로(구 소득세법 제87조, 제43조, 제118조) 개별 조합원들이 조합체로부터 수익분배를 받는다고 할 수 없으며, 조합이 해산되어 합유관계가 종료되고, 그 지분의 계산으로 조합재산을 일부 조합원에게 양도하는 경우에도 그로 인한 소득은 곧바로 조합원들에게 귀속할 뿐이므로 구 소득세법 제17조 제1항 제9호가 정한 배당소득에 해당한다고 할 수 없다(대법원 2015. 12. 23. 선고 2012두8977 판결 등 참조).

2) Whether the dividend income falls under dividend income

The Plaintiff and b. Construction agreed to conduct a partnership business with the Plaintiff’s share of 50:50 to purchase the instant real estate and to conduct a joint business with the Plaintiff’s share of 50:50, and the Plaintiff and 6 investors, including the Plaintiff, paid the purchase price for the instant real estate and completed the registration of ownership transfer with respect to the instant real estate in the name of bb. Construction. Ultimately, the Plaintiff and 6 members, including the Plaintiff, agreed to not conduct the instant business and sell the instant real estate. According to the agreement, bb. Construction purchased the instant real estate in x won and carried out the instant business independently; bb. Construction was adjusted between the Plaintiff and b. Construction to pay liquidation money to the Plaintiff on or around 2013, and the Plaintiff received the instant income from the instant comprehensive construction.

In light of the above facts in light of the legal principles as seen earlier, 6 persons including the plaintiff et al. tried to form a partnership relationship and conduct the business of this case as a joint venture, but the real estate of this case, which is the only partnership property after the completion of the said joint venture, was terminated by being the sole possession of bbb comprehensive construction. In such a case, 6 persons including the plaintiff et al. cannot be said to receive profit distribution from the partnership body as a joint venture. On the account of their share, 1-B comprehensive construction among the union members and the other union members receive the liquidation amount according to their investment share ratio, if they transfer the real estate of this case to b comprehensive construction among the union members, and the remaining union members receive the liquidation amount according to their investment share ratio, the income therefrom is only directly reverted to the other union members including the plaintiff, and therefore, the income amount

한편, 원고는 이 사건 소득금액이 구 소득세법 제17조 제1항 제8호의 '출자공동사업자의 손익분배비율에 해당하는 금액'에 해당될 수 있다는 취지로 주장하나, 위 인정사실에 의하면 원고는 이 사건 사업의 개시 단계부터 실질적으로 그 운영에 참여하여 온 것으로 보이므로, 구 소득세법 제43조 제1항, 구 소득세법 시행령(2013. 11. 5. 대통령령 제24823호로 개정되기 전의 것) 제100조 제1항 제1호에서 경영에 참여하지 아니하고 출자만 하는 '출자공동사업자'로 정한 '공동사업에 성명 또는 상호를 사용하게 한 자'에 해당한다고 보기 어렵다. 따라서 원고의 이 부분 주장은 이유 없다.

(iii) whether it constitutes business income or capital gains;

A) Whether it constitutes business income

The term "business" in Article 19 (1) of the former Income Tax Act means activities that are continuously and repeatedly conducted for a profit-making purpose under his/her own account and responsibility (see Article 19 (1) 20 of the former Income Tax Act), and the business income refers to the income generated from the business.

In light of the relevant legal principles, the following facts revealed: (i) The income amount of this case is not the income earned by six persons including the plaintiff, etc. from running the business of this case, but is paid as liquidation money in the process of liquidation of a partnership; (ii) it is difficult to deem that the business of this case is concerned with continuity and repetition to the extent that it can be seen as business activity; and (iii) the business of this case is to newly construct and sell the real estate of this case, and it cannot be deemed as a inventory asset for business. Therefore, since the sale of the real estate of this case cannot be deemed as a sale of inventory asset for business, the income amount of this case cannot be deemed as business income under Article 19 (1) of the former Income Tax Act. Therefore,

B) Whether capital gains are capital gains

According to Article 88 (1) of the former Income Tax Act, "transfer" refers to "transfer of assets to a cost by means of sale, exchange, investment in kind in a corporation, etc., regardless of registration or enrollment of assets," and "income from the transfer of land or buildings" is included in the scope of capital gains pursuant to Article 94 (1) 1 of the same Act, and fixed assets for business shall include land or buildings.

앞서 인정한 사실을 관련 법리에 비추어 보면, 이 사건 부동산은 원고 등 6인이 그 지상에 건물을 신축・분양하기로 하는 이 사건 사업에 사용할 목적으로 매입한 사업용 고정자산이었다고 할 것이고, 원고 등 6인은 이 사건 사업을 더 이상 진행하지 않기로 하고 이 사건 부동산을 bb종합건축에 매각하기로 하면서, 원고는 청산금 명목으로 bb종합건축으로부터 xx원(지연손해금 xx원 포함)을 지급 받았는데, 이 사건 소득금액은 그중 원고의 투자 원금과 지연손해금을 제외한 금액으로서 '건물의 양도로 발생하는 소득'이라고 할 것이므로, 원고의 이 사건 부동산에 관한 투자비율 또는 당초 약정한 손익분배비율에 따라 원고에게 직접 귀속되는 '양도소득'이라고 할 것이다(구 소득세법 제118조, 제43조). 따라서 원고의 이 부분 주장은 이유 있다.

C. Sub-committee

Therefore, although the Plaintiff’s instant income constitutes capital gains, the disposition of this case shall be taken against the Plaintiff.

was issued on the premise that it constitutes an acquisition, and is illegal.

4. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with different conclusions, so it is revoked, and it is so decided as per Disposition by cancelling the disposition of this case.