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(영문) 수원지방법원 2015. 08. 19. 선고 2014구단2342 판결
이익분배비율이나 손해분담비율이 없어 동업계약으로 볼 수 없음[국승]
Case Number of the previous trial

Appellate Court 2014J 494 (2014.07)

Title

No profit sharing ratio or loss sharing ratio can be seen as a partnership agreement.

Summary

The agreement was made to pay a fixed amount of land without a profit distribution ratio and to pay the amount of land, and there is no other reason to view the business as a partnership.

Related statutes

Article 94 of the Income Tax Act: Scope of Transfer Income

Cases

2014Gudan2342 Revocation of Disposition of Imposing capital gains tax

Plaintiff

○ ○

Defendant

port of origin

Conclusion of Pleadings

2015.15

Imposition of Judgment

2015.08.19

Text

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of KRW 207,315,670 on July 8, 2013 against the Plaintiff was revoked (it appears that “ July 12, 2013,” which is the date of the disposition stated in the purport of the claim, appears to be a clerical error in writing on July 8, 2013).

Reasons

1. Details of the disposition;

A. The Plaintiff is the owner of ○○○-gu ○○○○-dong 368-7 284 m2, 374-4 m2, and 59-2 m26 m26 m26 m2 in the same m2 (hereinafter collectively referred to as “instant land”).

B. Multi-household 8 (hereinafter “instant building”) was newly built on the instant land, and the approval for use was obtained on December 18, 2009.

C. On May 11, 2012, the Plaintiff filed a final return on the tax base of global income accrued in 2010 and 2011 to the Defendant on the premise that he/she obtained income by running a real estate business (housing construction and sales business).

D. From April 18, 2013 to May 1, 2013, the Defendant conducted an on-site investigation on the Plaintiff’s capital gains tax, and the Plaintiff determined that the instant land was transferred to Chungcheongnam-si on January 4, 2010, and issued a disposition imposing capital gains tax of KRW 207,315,670 on the Plaintiff on July 8, 2013 (hereinafter “instant disposition”).

[Ground of recognition] Evidence No. 6-1 to 8, Evidence Nos. 1, 2, 4, Evidence No. 5-1, 2-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff provided the land of this case with the building business operator, and Jung-si concluded a Dong business contract to newly build a multi-household house on the land of this case with the building cost borne by the building business operator, and since the plaintiff did not transfer the land of this case to △△, the defendant's disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

In full view of the evidence and the following circumstances acknowledged by the overall purport of the pleadings, including evidence of Nos. 3, 6, and 7-1, 2, 8, and 9 of the evidence Nos. 7-1, 7-2, 8, and 9, it is reasonable to deem that the person who newly built and sold the real multi-household house on the land of this case is correct, and that the Plaintiff transferred the land of this case to △△. Since the evidence and witness submitted by the Plaintiff and the testimony of △△△△ is insufficient to reverse this, the disposition of this case by

○ around June 2009, the Plaintiff and Jung-gu testified provided the instant land to △△, which newly constructed multi-household houses at their own expense, and sold them in lots. The amount of the instant land is set at KRW 500 million, and the Plaintiff shall be paid in preference to the sale of the newly constructed house, and the Plaintiff shall be paid in preference to all the taxes and public charges, such as income tax imposed on the construction and sale of the instant building. Furthermore, the name of the contract is limited to the contract of construction. The contract of this case is only the name of the contract of this case, and the contract of this case is merely the name of the Plaintiff and the construction contract of this case, and the contract of this case was signed in the sense that the Plaintiff provided the land and the construction work is not performed in the manner that the Plaintiff provided the land, and there is no specific agreement on the ratio of profit distribution or the ratio of loss sharing, which is the most important factor in the business.

According to the contract of this case, the Plaintiff received KRW 500 million, regardless of the amount of profit from the sale after the sale of the building of this case, and Jung-gu did not request the Plaintiff to bear part of the amount despite the loss of KRW 200 million due to the new construction and sale of the building of this case. Furthermore, it is difficult to view the contract of this case as a partnership agreement in light of the circumstances where the Plaintiff seems to have never thought to assume risks arising from the new construction and sale of the building of this case in addition to the receipt of KRW 500 million according to the contract of this case.

○ The Plaintiff did not have made business registration for the sale of the instant building, and the Plaintiff had been involved in the sale of two households among the instant buildings, but it appears that the Plaintiff was involved in the sale of the instant building, which was originally decided to be in charge of the sale in order to preferentially cover the price of the instant land with the sale price.

If the Plaintiff ○ ○ had a business partnership with ○○○, the Plaintiff appears to have failed to properly grasp the details of the project, even though the Plaintiff would have been unable to settle the accounts after deducting the expenses incurred in the sales of the instant building from the sales of the said business, and the money acquired in the course of carrying out a business partnership should be used as funds related to the business partnership. However, considering the circumstances such as not only the money directly received from the purchaser among the sales proceeds of the instant building, including two households involved in the sale of the instant building, but also the money that the Plaintiff received from the purchaser of the instant building, including the two households involved in the sale of the building, but also the money that the Plaintiff provided as security and borrowed as the loan to

3. Conclusion

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

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