Whether an organization deemed a corporation is an organization

Since a church does not fall under "organization deemed a corporation" under the Framework Act on National Taxes and cannot be seen as a corporation, the disposition imposing capital gains tax on the plaintiff who is the representative of the ○○ church shall be legitimate.

Article 13 of the Framework Act on National Taxes.

1. The plaintiff's claim is dismissed.

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

1. Basic facts

가. 원고는 (재)기독교○○○○○○○○ ○○교회에 재직하고 있는 목사로서, ○○ ○○○구 ○○○동 0000 ○○아파트 상가동 0층 001호, 002호, 003호, 004호(이상 대지 187.337㎡, 건물 282.75㎡. 이하 '이 사건 상가'라 한다)를 ○○○동상가아파트재건축조합으로부터 분양받아 1999. 4. 26.과 1999. 5. 13.에 원고 명의로 소유권보존등기를 경료하였다가 이 사건 상가 중 001호, 002호는 2004. 7. 27. △△△에게, 003호, 004호는 2004. 8. 9. ☐☐☐에게 각 양도하였으나 그에 대한 양도소득세 신고는 하지 않았다.

B. On May 1, 2005, the Defendant rendered the instant disposition imposing capital gains tax of KRW 24,401,600 on the Plaintiff for the year 2004.

C. On the other hand, the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ appears to have been operated independently including accounting.

[Ground of recognition] Facts without dispute, Gap 2, 5 evidence (including each number), Eul 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Even if the commercial building of this case is indicated in the name of the plaintiff, the previous building prior to the reconstruction of the commercial building of this case was acquired with the contribution made by the church believers, used for 13 years, and reconstructed the commercial building of this case as a branch church of the ○○ church for about 6 years, and transferred it. Thus, although the commercial building of this case should be deemed the corporate property and the tax law should apply and the transfer income tax should not be imposed, the disposition of this case imposing the transfer income tax is unlawful, considering the transfer by the plaintiff individual.

(b) Related statutes;

/ Income Tax Act

Article 1 (Liability for Tax Payment)

(1) Any individual who falls under any of the following subparagraphs shall be liable to pay income tax on his/her income under this Act:

1. Any individual who has a domicile in Korea or has a domicile in Korea for not less than one year (hereinafter referred to as "resident");

(3) An unincorporated association, foundation or other organization, which is not an organization deemed a corporation pursuant to Article 13 (4) of the Framework Act on National Taxes (hereinafter referred to as "organization deemed a corporation"), shall be deemed a resident and shall be subject to this Act.

【National Tax Basic Act

Article 13 (Organization Deemed a Juristic Person)

(1) Any unincorporated association, foundation or organization (hereinafter referred to as "unincorporated organization") which falls under any of the following subparagraphs shall be deemed a juristic person and subject to this Act and other tax-related Acts:

1. Unregistered associations, foundations or other organizations which are established with permission or authorization of the competent authority or registered with the competent authority under Acts and subordinate statutes;

2. Foundations which hold any basic property contributed for the public interest, but not registered.

(2) This Act and other tax-related Acts shall apply to an unincorporated association, foundation, or other unincorporated organization deemed a corporation under paragraph (1), which meets the requirements falling under each of the following subparagraphs and for which a representative or manager has obtained approval from the head of the competent tax office, deeming it as a corporation. In such cases, the continuity and homogeneity of the relevant association, foundation, or other organization

1. It shall have the rules relating to its organization and operation and appoint its representative or manager;

2. It shall independently own and manage profits and property in its own account and name;

3. Not distribute profits to members of private organizations, foundations and other groups;

(3) Any organization without a legal personality, which is considered as a corporation pursuant to paragraph (2), shall not be changed to a resident until the taxable period in which the approval from the head of the competent tax accountant is obtained, and which includes the date on which three years have passed after the end of the taxable period: Provided, That this shall not apply to cases where the approval is revoked as it fails

(4) The liability for the national taxes of an organization without a legal personality, which is considered as a juristic person under paragraphs (1) and (2) (hereinafter referred to as “organization considered as a juristic person”), shall be discharged by its representative or manager.

(5) Where a representative or manager is appointed or replaced for the fulfillment of the obligation related to national taxes, an organization considered as a corporation shall report it to the chief of the competent tax office.

(6) If there is no report under paragraph (5), the head of the competent tax office may designate one of its members or persons concerned as the person performing the duties related to the national taxes.

(7) Matters necessary for application and approval of an organization deemed a corporation, the issuance of tax code numbers, etc. and revocation thereof shall be prescribed by Presidential Decree.

【Enforcement Decree of Framework Act on National Taxes

Article 8 (Application, Approval, etc. of Organization Deemed a Juristic Person)

(1) The representative or manager of an unincorporated association, foundation or organization (hereinafter referred to as "unincorporated organization") which intends to obtain approval pursuant to Article 13 (2) of the Act shall submit a document stating the matters in each subparagraph to the head of the competent tax office:

1. Name of the organization;

2. Location of the principal office;

3. Name and domicile of its representative or manager;

4. Business purposes;

5. Financial status;

6. Articles of incorporation or provisions concerning organization and operation;

7. Other necessary matters.

(2) The head of the competent tax accountant shall notify the documents submitted by a representative or manager of an unincorporated organization under paragraph (1) within ten days from the date of application for approval.

(3) For an unincorporated organization which has obtained approval under paragraph (2), an identification number under the provisions of Article 8 (2) of the Enforcement Decree of the Value-Added Tax Act shall be given simultaneously with the approval: Provided, That the same shall not apply to cases where it is intended to conduct the profit-making business and it is required to make a registration under the provisions of

(4) Where an unincorporated organization which has obtained approval pursuant to paragraph (2) fails to meet the requirements under subparagraphs of Article 13 (2), the head of the competent certified tax accountant office shall, without delay, cancel such approval.

C. Determination

(1) According to the facts acknowledged above, the plaintiff could know that the commercial building of this case was acquired in the name of the plaintiff and transferred it to another person. Thus, the owner and the transferor of the commercial building of this case are the plaintiff, and there is no evidence to reverse the above presumption, barring any special circumstance, it is reasonable to deem that the owner and the transferor of the commercial building of this case are the plaintiff. Therefore, the disposition of this case imposing capital gains tax on the transfer income of the commercial building of this case as a taxpayer

(2) Even if the commercial building in this case is deemed to be owned by ○○ church, not the plaintiff, according to the assertion of the member's dismissal, the ○○ church does not correspond to the "organization deemed to be a corporation" under the Framework Act on National Taxes, and thus cannot be deemed to be a corporation, and therefore, it shall be deemed to be a resident (individual) under the Income Tax Act. Accordingly, the instant disposition imposing the transfer income tax on the plaintiff who is the representative of ○○ church

First, Article 13 (1) of the Framework Act on National Taxes provides that an unincorporated association, foundation, or other organization without a legal personality which is established with the permission or authorization of the competent authority or which is not registered with the competent authority (Article 13 (1) 1) or an unincorporated association, foundation, or other organization with basic property contributed for the public interest (Article 13 (2) 2) shall be deemed a juristic person and shall be subject to tax law. First, in relation to the above subparagraph 2, in general, a church shall be deemed to have the nature of an association composed of the members of a worship, and the properties of the church shall belong to the collective ownership of the members, and the members shall be able to use and profit from the church properties subject to collective ownership within the scope of the purpose of each church activity (see Supreme Court Decision 97Nu17261, Jul. 7, 199); therefore, it shall not be deemed a foundation without legal personality, and therefore, it shall not be deemed to have been established with the competent authority having basic property contributed for the public interest as provided for in subparagraph 2 of the above.

Second, Article 13 (2) of the Framework Act on National Taxes provides that "any unincorporated association, foundation, or organization, other than an association, deemed a corporation under paragraph (1) of the same Article, which meets certain requirements and obtains approval from the head of the competent tax office, shall also be deemed a corporation and subject to this Act and other tax-related Acts." However, according to the statement in subparagraph (2) of subparagraph (6) of the same Article, ○ ○ Subdivision was approved as an organization deemed a corporation on July 6, 2005, after the transfer of the commercial building of this case. Therefore, the above provision shall not be applied at

3. Conclusion

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