Cho Jae-201-Seoul Government-3441 ( November 21, 2012)

As long as income from the general sale of multi-family housing reconstruction association is appropriated to the construction cost to be borne by members, income is attributed to members.

As long as income from the general sale of apartment houses by a multi-family housing reconstruction association is appropriated to the construction cost to be borne by members, the income of the association members shall belong to the association members, and there is no justifiable reason to improve the obligation to report and pay global income tax.

Article 43 of the Income Tax Act, distribution of income in case of joint ownership, etc.

Article 87 (Special Cases in Calculation of Income Amount for Joint Business Place)

2013Guhap3962 global income and revocation of disposition

Ma-○

○ Head of tax office

February 28, 2014

April 15, 2014

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 imposing global income tax of KRW 000 (including additional tax) for the year 2003 against the Plaintiff on May 1, 201 shall be revoked.

1. Details of the disposition;

A. The Plaintiff’s spouse is the owner of ○○○○○-dong 000-00, and 2BCC 00 located in Seoul, ○○○○○-dong 00, and 00, as a member of the BB-Building Housing Association established for the purpose of newly constructing an apartment after removing the existing old house (hereinafter “the reconstruction association of this case”). Meanwhile, the Plaintiff succeeded to the deceased KimA’s duty to pay taxes due to the death of the deceased KimA (for convenience below, the Plaintiff is regarded as a member of the reconstruction association of this case).

B. The reconstruction association of this case, upon approval of the reconstruction project on February 17, 200, concluded a contract with DD Integrated Construction Co., Ltd. (hereinafter “DD Integrated Construction”), which is a contractor on January 20, 201, and completed the reconstruction project on May 15, 2003, which is an apartment building (20 units of association members and 19 units of general sale).

C. On May 1, 2011, the Defendant: (a) deemed that the instant reconstruction association does not constitute an unincorporated organization deemed a juristic person under the Framework Act on National Taxes, and the members of the instant reconstruction association constituted joint business operators; and (b) calculated the amount of income accrued in 2003 of the reconstruction association for the general sale portion among the said reconstruction apartment in proportion to the shares of each association member and imposed global income tax of 000 won on the Plaintiff for the income accrued to the general sale portion (hereinafter “instant disposition”).

D. The Plaintiff filed an objection and filed an appeal on September 26, 201, but the Tax Tribunal dismissed the Plaintiff’s appeal on November 21, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, Eul evidence No. 1 (including various numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

(1) The reconstruction association of this case entered into a share contract for the implementation of the reconstruction project with DD General Construction. According to this, profits from the sale of the general unit unit 19 households among reconstruction apartment units were entirely reverted to DD General Construction. In addition, 45 square meters are sold in lots instead of 33 square meters that 33 square meters originally agreed to purchase, and additional payment was made between DD General Construction. Accordingly, profits from the sale of the general unit 19 households and from the sale of the unit units and from the usual change were all reverted to D General Construction. Despite the fact that such profits are not reverted to the reconstruction association of this case or its members, the disposition of this case was unlawful, even if it is possible to impose the income tax on the plaintiff, even if it is possible to impose the income tax on the plaintiff, that is, the income that the plaintiff was derived from the share contract, and the profits that the plaintiff did not obtain by directly paying the construction cost, and thus, the defendant should be imposed on the plaintiff's members of this case as the disposition of tax imposition of 19 square meters.

(2) In full view of the following facts: (a) all the construction works of the reconstruction apartment in this case and the sales in lots by the members of the 19 household in general, the Plaintiff was entirely unaware of whether the Plaintiff filed the global income tax return prior to the failure to impose the instant disposition regarding the global income tax; and (b) the Defendant rendered the instant disposition after the lapse of at least eight years after the Plaintiff moved into the DDDDD; and (c) there exists a justifiable reason that the Plaintiff could not be attributable to the Plaintiff’s failure to pay the global income tax for the year 2003, and thus, the instant disposition imposing the additional tax is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On January 20, 2001, the reconstruction association of this case entered into a BB reconstruction contract with D General Construction with the following contents:

1. Project name: Construction of the BB-type reconstruction apartment;

2. Place of construction: Seoul ○○-dong 000-00, 000-00

3. Site area: 000 square meters;

4. Total floor area: 000 square meters;

5. Period: April 2001 (20 months from the commencement date of works).

6. Contract amount: 000 won (excluding value-added tax);

7. Completion portion: Revenues from general sale and substitute it with the contributions of members; and

8. Warranty liability period: two years; and

9. The rate of penalty for delay: 1/1,000.

10. Interest rate for delayed payment: 18% per annum.

11. Project operator: The reconstruction association of this case.

12. Project executor: D comprehensive construction;

Article 1 (Purpose)

The purpose of this Agreement is to provide for the matters necessary for the instant reconstruction association (hereinafter referred to as “A”) and DD Integrated Construction (hereinafter referred to as “DD”) which is the executor, to carry out the reconstruction project ofCC as of the Seoul ○○○○-dong, for the purpose of this Agreement, by entering into this Agreement with the instant reconstruction association (hereinafter referred to as “A”) and the DD Integrated Construction (hereinafter referred to as “B”), and to carry out the construction smoothly. A and B shall supply 20 members of A, on an equal footing, with new apartment units at 33 square-type 1,00,000,000 won per household, and the members shall pay to B the contributions, and B shall complete the project with the remaining apartment units of the excessive portion and the contributions of the members, and this Agreement shall enter into force on the date of the contract, and the legal action of the president of the partnership shall be deemed to have been conducted with the consent of the members, and shall implement the project in good

Article 2 (Indication of Business Real Estate)

○ Ground 1, 9-15 floors above ground

○ Apartment: 33 square meters - 24 households, 45 square meters - 15 households

Article 4 (Payment of Construction Costs)

1. Project costs shall be the proceeds from sale in general (19 households), the contributions per each household of the members of the association, loans secured by a building and land, and other funds;

2. Project costs shall not be used for any purpose other than construction costs;

Article 15 (Delegation of Authority)

A as the business owner of this reconstruction project, shall deal with the following matters in consultation with B:

Article 16 (Distribution of New Construction Buildings)

1. On the portion of Party A, it shall be determined by the union rules (the determination by drawing lots of floors and lakes), and Party A shall pay Party A's own contributions as the construction cost, and Party A shall not use them;

2. In principle, the shares of a union member shall be occupied in the 33th square, and if a union member wishes to be 45th square, the difference between the 45th square sale price and the 33th square sale price shall be paid and occupied additionally: Provided, That options items shall be separately provided;

3. All proceeds from sale shall revert to B and be appropriated from construction costs;

Article 17 (Co-Payment of Expenses by Members)

1. The shared amount of members shall be 000 won per household, consisting of a difference depending on the shares of land of the members, and the total amount shall be 000 won, and if any, the additional project cost shall be borne in case of a

2. A and B shall be granted loans in cooperation with other financial institutions, such as installment financing, by making use of the said shared amount as much as possible, and shall make it smooth to implement the projects;

(2) The application for pre-use inspection submitted to the head of ○○○ on April 21, 2003 is written by the project undertaker as the instant association and DD comprehensive construction, and the contractor as DD comprehensive construction. On the other hand, the seller’s written contract for re-sale of the reconstruction apartment drawn up around October 8, 2002 is written as the instant reconstruction association and D comprehensive construction.

(3) Of the reconstruction apartments, the ownership preservation steam was completed in the name of the association member, and the general sale portion was completed in the name of the reconstruction association, and the registration of ownership transfer was completed after the registration of ownership preservation was completed in the name of the reconstruction association.

(4) (A) After confirming the fact that the instant reconstruction association did not register its business and did not report value-added tax, the Defendant issued a revised and notified the value-added tax on January 201, 201, and the Defendant calculated the amount of revenues accrued in 2003 of the reconstruction association as the total gross income of the reconstruction association of this case by adding 000 won (the amount paid additionally after receiving 45 square-type apartments instead of 33 square-type apartment houses originally sold by the members, who are members of the association, and 5 square-type apartment houses) paid to the association where the association members acquire 00 won of the sales price for general apartment units sold in excess of shares under the agreement.

(B) The Defendant calculated the amount of each Plaintiff’s revenue by multiplying the respective unit ratio by the respective unit ratio of the Plaintiff’s total revenue calculated as above. Accordingly, the amount allocated to the Plaintiff’s spouse’s deceased KimA is KRW 000, and the amount of income calculated by applying the simple expense rate applicable to the Housing and Sales Business Act and KRW 000,000,000,00

(5) On the other hand, when reporting the value-added tax on January 2003, DD Integrated Construction issued a tax invoice of KRW 000,000, which is the contract price under the contract, as the supply price, and closed around June 5, 2003.

(6) The Plaintiff did not file a comprehensive income tax on the income accrued from the sale of the rebuilding apartment in the instant case.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 4, Eul evidence Nos. 4, Eul evidence Nos. 4, 5, 7, 8, and 9, the purport of the whole pleadings

D. Determination

(1) As to the Plaintiff’s first argument

(A) With respect to general sale, the reconstruction association of this case generated income equivalent to the amount obtained by deducting the book value and construction cost of the share in the land for general sale, which is the acquisition cost, from the sale price, and it is reasonable to deem that the acquisition cost of the reconstruction association of this case reverts to the members by selling the apartment house exceeding the investment value of the members to the members of the association (see, e.g., Supreme Court Decision 2007Du19799, Jun. 10, 2010). As long as the income derived from the reconstruction association of this case is appropriated for the construction cost to be borne by the members of the reconstruction association of this case due to general sale, all the income shall be deemed to belong to the reconstruction association and to be distributed to the members of the association. Accordingly, the Plaintiff’s assertion that the benefit from general sale 19 households was entirely DD integrated construction, or that the profit of the general sale portion 19 households does not belong to the members of the association including the Plaintiff is without merit.

In addition, it is reasonable to view that, in the process of implementing the reconstruction association of this case, three members of the association of this case changed from 33 to 45 square meters, and additionally paid the difference between 45 square meters and 33 square meters of sale price, as well as the portion which added an amount equivalent to the difference between the 33 square meters of sale in general, it was generated in the reconstruction association of this case, and it was distributed and reverted to the members of the association. Accordingly

(B) Meanwhile, pursuant to Article 80(1) and the proviso of Article 80(3) of the former Income Tax Act (amended by Presidential Decree No. 7319 of Dec. 31, 2004), the head of the district tax office having jurisdiction over the place of tax payment or the director of the regional tax office having jurisdiction over the place of tax payment or the director of the regional tax office who is liable to make a final return on tax base under Article 70 through 72 or 74 fails to do so, he shall determine the tax base and tax amount of the relevant resident in the relevant year. In cases where the amount of income cannot be calculated by books or other documentary evidence for reasons prescribed by Presidential Decree, the amount of income can be estimated under the conditions as prescribed by Presidential Decree. Accordingly, Article 143(1)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19327 of Feb. 9, 2006) provides that "one of the "reasons prescribed by Presidential Decree No. 19327 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20137 of Feb. 137 of Feb. 29, 20, 20000). . 1).

According to the above facts, the plaintiff did not file a comprehensive income tax on the income accrued from the sale of general apartment units among the reconstruction apartment units in this case. Meanwhile, considering the following purport of the argument as to the statement No. 9, DD comprehensive construction closed around June 5, 2003 and there was no data related to the reconstruction construction in this case, and seven years or more after the completion of the reconstruction apartment at the time of the disposition of this case, etc., it constitutes a case where there is no necessary account books and documentary evidence in calculating the plaintiff's tax base, and the plaintiff constitutes a real estate sales broker whose total amount of income in the immediately preceding taxable period is less than 72 million won and who is subject to the application of simplified expense expense, the defendant did not determine the amount calculated by multiplying the amount of income under Article 80 (1) and the proviso to Article 80 (3) of the former Income Tax Act (amended by Presidential Decree No. 7319 of Dec. 31, 2004) and Article 14 (1) 1 and 2 of the former Enforcement Decree (3) of the Income Tax Act.

(2) As to the second argument of the Plaintiff

Under the tax law, in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, an additional tax is an administrative sanction imposed as prescribed by the law, and where there are extenuating circumstances where it is unreasonable to expect the taxpayer to fulfill the obligation, and thus, it is not possible to impose an additional tax on the taxpayer (see Supreme Court Decision 2004Du930, Nov. 25, 2005).

However, considering the circumstances alleged by the Plaintiff in the instant case, the Plaintiff’s failure to report and pay the global income tax for the year 2003 only arises from the Plaintiff’s land or misunderstanding under the Plaintiff’s law. The global income tax is the so-called tax return method that the taxpayer voluntarily investigates and checks the requirements for establishing a tax obligation, and files a tax base and tax amount by applying the relevant tax law, and thus establishes a very important meaning in the taxpayer’s return method rather than the tax assessment method. For some of the members of the reconstruction association of this case, the exclusion period for imposition expires, while the exclusion period for imposition does not exceed the exclusion period for imposition for the Plaintiff, the exclusion period for imposition under the Framework Act on National Taxes is against the apparent equity. However, the exclusion period for imposition under the Framework Act on National Taxes is divided into cases where the taxpayer files a tax base return by the statutory due date for imposition of national taxes (if a tax return is filed for five years from the date on which national taxes can be imposed, it is seven years from the date on which the Plaintiff did not file the global income tax return by the statutory due date for imposition).

(3) Therefore, the Defendant’s instant disposition is lawful.

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.

Related Acts and subordinate statutes

▣ 구 국세기본법(2007. 12. 31. 법률 제8830호로 개정되기 전의 것)

Article 14 (Real Taxation) (1) If the ownership of income, profit, property, act or transaction subject to taxation is merely nominal, and there is another person to whom it actually belongs, the person to whom it actually belongs shall be the person to whom it actually belongs as a taxpayer and

(2) The provisions on the calculation of tax base in tax-related Acts shall apply according to the substance, regardless of the name or form of income, profit, property, act or transaction.

▣ 구 소득세법(2004. 12. 31. 법률 제7319호로 개정되기 전의 것)

Article 43 (Distribution of Income in Case of Joint Ownership) (1) In the calculation of the income amount for a joint business place as prescribed in Article 87, the joint business place shall be considered as one resident.

(2) Where an entrepreneur owns or combines assets or jointly runs a business, the amount of income shall be calculated for each resident according to the amount of income distributed or to be distributed in proportion to his/her share or distribution of profits and losses.

▣ 구 소득세법(2006. 12. 30. 법률 제8144호 개정되기 전의 것)

Article 87 (Special Cases in Calculation of Income Amount for Joint Business Place) (1) With respect to any place in which a joint business having the following incomes is operated (hereinafter referred to as "joint business place"), the income amount shall be calculated by the joint business place in which the income

1. Real estate rental income;

2. Business income:

3. Forest income.