early 201 Jeon 4816 ( December 22, 2011)

Since capital gains tax was imposed on land that was not contributed without compensation, it is legitimate to impose capital gains tax.

If land was contributed to a social welfare foundation, it shall not be deemed that land compensation was contributed to the ordinary property of the foundation in light of the fact that the articles of incorporation of the foundation does not include the basic property in the articles of incorporation of the foundation, and that the registration of ownership is not transferred to the foundation.

Article 88 of the Income Tax Act

2012 old-gu 572 Revocation of Disposition Rejecting Transfer Income Tax Correction

XX

The Director of the National Tax Service

July 26, 2012

August 24, 2012

1. The plaintiff's claim is dismissed.

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

The defendant's rejection rejection disposition against the plaintiff on September 5, 201 against the plaintiff on September 5, 201 shall be revoked.

1. Details of the disposition;

A. From around 1986, the Plaintiff owned 00-12 large 1,838 square meters (hereinafter referred to as “the land before the instant subdivision”) of the Dong-gu, Chungcheongnam-gu, Chungcheongnam-do (hereinafter referred to as “ XX Dong”). On April 1, 2011, the said land was divided into x 00-12 large 875 square meters (hereinafter referred to as “the land after the instant division”) and x 000-17 large 963 square meters (hereinafter referred to as “the instant land”).

B. On April 7, 2011, the Plaintiff transferred the instant land and the instant land to KRW 000,000,000 prior to 00-18, Dong-dong (hereinafter “instant adjacent land”), and reported and paid KRW 000,000,000 for capital gains tax on June 28, 201.

C. After that, on July 22, 2011, the Plaintiff asserted that the instant land was contributed to the Social Welfare Act Love House (hereinafter “instant corporation”), a social welfare law, before being transferred at the time of the Yanan City, and that the Plaintiff is not a taxpayer of capital gains tax following the transfer of the instant land, and filed a request for correction to refund the reported and paid capital gains tax, as above.

D. On September 5, 201, the Defendant rejected the Plaintiff’s claim for correction on the ground that the Plaintiff’s property contributed to the incorporated foundation of this case is not the land of this case, but the compensation for the land of this case (hereinafter “instant disposition”).

E. On October 17, 2011, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on December 22, 2011.

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1, 6 and 7 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff operated the Green House, which is a facility for intellectual disabled persons, operated the said facility, and contributed the instant land to the instant corporation on October 8, 2010 while converting the said facility into the instant corporation. Since the instant corporation completed the registration of incorporation on November 5, 2010, the instant land was reverted to the instant corporation at the time of the registration of incorporation. Therefore, at the time of the acquisition of the instant land after the registration of incorporation of the said corporation, the owner of the instant land was deemed the instant corporation, and the Plaintiff is not a taxpayer for capital gains tax following the transfer of the instant land. Nevertheless, the instant disposition issued under the premise that the owner of the instant land is the Plaintiff is unlawful.

(b) Fact of recognition;

1) On October 27, 2008, the Plaintiff applied for the establishment permission of a social welfare foundation to Chungcheongnam-do on the ground that the property of a corporation around October 27, 2008 in order to convert the above facility into a social welfare foundation: 000-1 forest land and 4,181 square meters (the appraisal value of KRW 000), and no operating fund: The Plaintiff applied for the establishment of a social welfare foundation; however, on the ground that the Plaintiff did not establish a financial basis, such as basic property for profit-making business, which is able to cover operating expenses, and thus, it is impossible to realize the objective project specifically under the facility operation plan.

2) The Plaintiff again filed an application for the establishment of a social welfare foundation on December 31, 2009, with the basic property for the 'property of a corporation' for the 'purpose business: XX 000-1 forest land of 000-1 forest land of 000-1 forest land of 000-7 forest land of 000-7 forest land of 000-7 forest land of 1,983 square meters (value assessed) and ordinary property: 000 won. However, on January 29, 2010, the Plaintiff was denied on the same ground as the first non-permission.

3) Meanwhile, on February 27, 2004, the astronomical City obtained the authorization of an implementation plan for urban planning facilities for the construction of access roads to the video culture complex in the East-gu, Dong-dong and Dong-dong. The land, etc. prior to the instant subdivision was also included in the said road scheduled site.

4) On September 1, 2010, the Plaintiff requested evidence of the consultation agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement agreement to be entered into a road for a video industrial complex. On September 8, 2010, the Plaintiff sent a reply on September 8, 2010, stating the list of land used or expropriated for the above urban planning facilities and the estimated amount of compensation.

5) On or around September 9, 2010, the Plaintiff applied for permission for the establishment of a social welfare foundation, along with the aforementioned written response data, to obtain permission for the establishment of a social welfare foundation on or around October 28, 2010, the basic property for the 'property of a corporation': XX 000-1 forest land, 4,181 square meters (value assessed 00 won): deposit in general property: 000 won; and the expected amount of compensation in the case of Annananananancheon City.

6) After that, KRW 00 of the compensation for the instant land and the instant adjacent land was deposited into the deposit account in the name of the Plaintiff on April 22, 2011. The full amount of the compensation and the deposit interest thereon, KRW 000,000, was transferred to the deposit account in the name of the Plaintiff on June 28, 201.

7) Meanwhile, in the property list of the instant corporation’s articles of incorporation, the estimated amount of compensation for the land before the instant subdivision is indicated as ordinary property. Meanwhile, the property contribution certificate (written consent of donation) signed on October 8, 2010 under the name of the Plaintiff stated that the Plaintiff made a free contribution of the Plaintiff’s property to the instant corporation as follows.

[Ground of recognition] Facts without dispute, Gap 5, 6, 7 evidence, Eul 1 to 10 evidence, the purport of the whole pleadings

D. Determination

In full view of the following circumstances revealed in light of the above facts, the disposition of this case on the premise that the land of this case is owned by the plaintiff is legitimate since it is difficult to view that the land of this case was contributed to the corporation of this case without compensation.

1) According to Article 23 of the Social Welfare Services Act and Article 12 of the Enforcement Rule of the same Act, the property of a social welfare foundation is divided into fundamental property and general property, real property, property determined by the articles of incorporation as fundamental property, property incorporated as fundamental property by a resolution of the board of directors, etc. The basic property is a common property, and the list and value of the fundamental property is stated in the articles of incorporation, and when the fundamental property is intended to be sold, donated, exchanged, leased, provided as security, or changed the purpose of use. If the Plaintiff contributed to the instant corporation, the pertinent land is a real property and does not constitute the basic property of the instant corporation, but is not included in the articles of incorporation of the instant corporation, even though it falls under the basic property of the instant corporation (limited to the complex land compensation KRW 00 is a common property). The permission of the Minister of Health and Welfare at

2) The Plaintiff completed the registration of ownership transfer in the name of the instant legal entity with respect to 00-1 forest land of 000-1 m2,181 m2 stated as fundamental property in the articles of incorporation among the real estate for which the Plaintiff claimed that the instant legal entity had made free contributions, but the instant land and the land after division did not transfer the ownership registration to the instant legal entity, and no special circumstance is recognized to otherwise treat the land contributed at the same time (in addition, the land after Gu or division was made on July 11, 2012 for which the ownership transfer registration was made on the ground of consultation on the acquisition of public land, and the Plaintiff did not assert against the disposal of the said land and the owner of the compensation

3) Although the land adjacent to the instant case is not included in the Plaintiff’s gratuitous property, the compensation for the said land was deposited into the deposit account in the name of the instant corporation without distinguishing it from the compensation for the instant land.

4) Examining these circumstances in light of a series of processes until the Plaintiff obtained the establishment permission of the instant corporation, the Plaintiff is bound to have contributed the instant land and the instant adjacent land as the ordinary property of the instant corporation in order to raise funds for the operation of the instant corporation.

3. Conclusion

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