Suwon District Court 2009Guhap5344 ( November 30, 2011)

early 2009 depth009 ( October 19, 2009)

the case of taking the procedure to receive the status of an operator of a school juristic person shall be the case in which the reward is paid to the money of the case.

The instant contract is an honorarium paid to the Plaintiff in the case of taking a procedure by which the Plaintiff may receive the status as an operator of a school juristic person, and there is no evidence to prove that the contract constitutes an honorarium and that the Plaintiff bears the duty to return due to the cancellation of the contract.

2011Nu45735 Revocation of imposition of global income tax

AA

Head of Sungnam Tax Office

Suwon District Court Decision 2009Guhap5344 Decided November 30, 201

October 30, 2012

January 11, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked.

The Defendant’s disposition of imposing global income tax of KRW 000 on the Plaintiff on August 10, 2006 shall be revoked.

1. Global income tax:

The following facts are recognized in full view of the overall purport of the pleadings in each entry of Gap evidence 1 to 3, and Eul evidence 1 to 3:

[1]

On June 29, 2004, the Plaintiff, the president of the CCA (hereinafter referred to as the “instant school foundation”), entered into a contract (hereinafter referred to as the “instant contract”) with DaD with the following terms and conditions.

(Omission of Conclusion)

O until July 12, 2004, the Plaintiff received 000 won from DoD, and made it possible to take office Dodd, euE, etc. as directors of the educational foundation of this case, and euF as president.

[2]

O) On August 10, 2006, the Defendant decided and notified 000 won of global income tax for the year 2004 to the Plaintiff on August 10, 2006, by deeming that the Plaintiff received eight billion won from D as a loan, and that the Plaintiff was given a honorarium by neglecting the status of the president of the instant school foundation (hereinafter “instant disposition”).

The plaintiff is dissatisfied with this and the Board of Audit and Inspection of August 24, 2006. However, the Board of Audit and Inspection of the Board of Audit and Inspection of 209.

5. 25. A request for review was dismissed.

2. The plaintiff's assertion

The Plaintiff’s receipt of KRW 8 billion from DoD was received as a loan, and it was not received as a honorarium for waiver of the status of the principal of the instant school foundation. Moreover, Dodddddddddddddddddddddddddddddds bears tax liability under the instant disposition, and it did not perform it, thereby cancelling the instant contract, and accordingly, the Plaintiff was obligated to return the said KRW 00 to Doddddddds. Accordingly, the instant disposition that imposed a comprehensive income tax on the Plaintiff is unlawful.

3. Determination

(a) Facts of recognition;

The following facts are recognized in full view of each entry in Gap evidence 2 to 7, and evidence 10 to 16, and evidence 2 to 11 (including each number):

[1]

O The Plaintiff deposited cash, which is the basic property for profit of the instant school juristic person, as a term deposit, and used 000 won for personal use by obtaining a loan as security, but did not repay it. The said term deposit and loan were offset against each other, and the land sale price of KRW 000 was not included in the accounts of the instant school juristic person, thereby illegally managing the basic property for profit-making purpose.

O Gyeonggi-do Superintendent of the Office of Education provided that on June 12, 2004, after conducting an audit on the school juristic person of this case, he/she requested the Plaintiff to compensate for the total amount of KRW 000 won of basic property for profit and interest thereon until July 3, 2004, and if it is not preserved until the above date, he/she shall cancel the approval of taking office.

O On June 29, 2004, the Plaintiff transferred the right to operate the school foundation of this case to KRW 000, but the Plaintiff entered into the instant contract with the Gyeonggi-do Office of Education to transfer the right to operate the school foundation of this case by applying for the selection and appointment of a temporary director, and on the same day, paid KRW 00,000 out of the above KRW 00,000, and deposited it into the reorganization of the school foundation of this case.

On July 9, 2004, the plaintiff requested the Gyeonggi-do Office of Education to appoint E, etc. recommended by Dodddd as a temporary director, and the Gyeonggi-do Office of Education requested the plaintiff not to raise an objection due to concerns over future disputes.

O) On July 8, 2004, the Plaintiff prepared the following agreements with Doddi, because it is likely that the instant contract is a trade of school juristic persons’ operating rights.

(Omission of Agreement)

O The plaintiff submitted to the Gyeonggi-do Office of Education a written opinion on a provisional director's request to the effect that he/she promises not to raise any objection against the decision of the provisional director and the provisional board of directors, and on July 9, 2004, the Office of Education of Gyeonggi-do appointed eight persons other than EE and eight persons as temporary directors of the school foundation of this case.

O The above temporary directors held a board of directors on July 13, 2004 and passed a resolution to appoint DoD, AF, etc. as a regular director of the instant school corporation, and obtained approval from the Gyeonggi-do Office of Education, while AF was elected as the president and approved by the Gyeonggi-do Office of Education.

[2]

(O) When the Plaintiff, who was the Dominology, was aware of the fact that HF was the Dominology, filed a lawsuit against the Plaintiff on July 28, 2004 against the Superintendent of the Gyeonggi-do Office of Education (2004Guu4261) to revoke the revocation of the approval of the executive officer of the school foundation of the Plaintiff as the Suwon District Court 2004Guu4261, which had the mind that HF would recover the right to operate the school foundation of this case again.

O on August 10, 2004, Park GG, an OOOO director, prepared a letter of confirmation that "the plaintiff will resolve 000 won which has become a financial problem", and the OOOO federation opened a conference on the same day to the effect that the right of operation of the school juristic person of this case should be returned again to the original state. At that time, the fact about the transfer of the right of operation of the school juristic person of this case and the transaction price thereof was disclosed.

OF stated that the dispute between the Plaintiff and the religious organizations including the Plaintiff occurred with respect to the transfer of operating rights of the instant school juristic person, and on August 21, 2004, the Plaintiff filed a complaint with the Ansan Police Station for embezzlement, etc., and the Plaintiff acquired the right to operate the instant school juristic person from the Plaintiff in the course of the investigation by the complainant.

O) As above, the transfer of operating rights of the instant school foundation was made public as a dispute between religion and the National Tax Service, and the National Tax Service conducted an investigation to determine that the instant contract constituted a transfer that is not a loan, and that the instant contract was substantially traded by the FF on May 29, 2006 in the course of the investigation.

In the lawsuit seeking revocation of the above executive approval cancellation disposition filed by the plaintiff et al., on April 6, 2005, the first instance court judgment dismissing the lawsuit by the plaintiff et al., and the appeal by the plaintiff et al. was dismissed on May 4, 2006 (Seoul High Court 2005Nu9387), and the appeal was dismissed on December 14, 2007 (Supreme Court 2006Du9290) and the first instance judgment became final and conclusive.

B. Whether a loan was granted

(1) Article 21 (1) 17 of the Income Tax Act refers to money and valuables provided as money in the case in connection with administrative affairs or provision of services, and whether it is applicable must be determined by comprehensively considering the motive and purpose of receiving the money in question, the relationship with the other party, and the amount.

(2) Comprehensively taking into account the facts recognized as above, the transfer of school juristic person’s operating rights is made in the manner that the transferor resignss from the position of directors, etc., and the board of directors of the school juristic person appoints a new director or a new chief director to request the approval of the competent agency. ② The instant contract is formally lent KRW 8 billion to the Plaintiff. However, the Plaintiff’s right to operate the instant school juristic person is transferred to DoD upon resignation of 2/3 or more of the directors of the board of directors. ③ The Plaintiff, the chief director of the instant school juristic person, was the Plaintiff, under the instant contract, was the Plaintiff’s request for selection and appointment of provisional directors, submission of written opinions, etc., which was approved by the Gyeonggi-do Office of Education as the principal director of the instant school juristic person, and under the instant contract, DoD lends a large amount of 00 won to the Plaintiff without any agreement on the interest and maturity period, but this is very exceptional, and thus, it does not seem to constitute the Plaintiff’s status of the instant school juristic person’s 1.

C. Cancellation of contract

(1) Where a contractual party prepares in writing a disposal document, if the objective meaning of the text is clear, the combination and content of expression should be recognized as well, barring special circumstances, and where the objective meaning of the text is not clearly expressed, it shall be reasonably interpreted in accordance with logical and empirical rules so that it can be in line with the ideology of social justice and equity, and with the common sense of society and trade norms (see Supreme Court Decision 2009Da68941, Feb. 10, 201).

(2) In full view of the above facts and arguments, the plaintiff's request for the transfer of the right to operate the school foundation of this case, and (1) stated that the contract of this case is most likely to be leased to avoid taxes, and that the contract of this case bears the full amount of taxes. (2) The office of education requested that the plaintiff appoint Does, recommended by the plaintiff as temporary directors, and that the plaintiff would not raise an objection to the appointment of temporary directors. (3) At the plaintiff's request, Does already paid 00 won or more to the plaintiff under the contract of this case, Does are in a situation where the plaintiff's opinion should be received, and Does are in the process where the plaintiff's opinion is considered as a trade right of the school foundation, and in particular, Does are in the process where the contract of this case was executed by the National Tax Service, and there was no reason to believe that the contract of this case was executed by the National Tax Service to transfer the right to operate the school foundation of this case.

4. Conclusion

If so, the plaintiff's claim seeking the cancellation of the disposition of this case can be dismissed due to the lack of reason, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed.

It is so decided as per Disposition.