High Court 2014 Mine4245 (Law No. 11, 2015.09)

The fact that the registration number for the registration of real estate is granted shall not be deemed to have been registered with the competent authority.

It does not constitute an organization deemed a corporation under Article 13 (1) of the Framework Act on National Taxes, since only the fact that it is an organization registered under the provisions on the procedures for granting registration numbers for real estate registration is not established or registered with the competent authority

Article 13 (Organization Considered as Juristic Person)

Gwangju District Court 2015Guhap13468

00 Representatives of 000 00

00. Head of tax office

April 28, 2016

May 12, 2016

1. The plaintiff's claim is dismissed.

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

The imposition of KRW 000 and additional 000 and the total amount of KRW 0000 and additional 000 for the transfer income tax belonging to the year 2013, which was imposed on the Plaintiff on July 1, 2014 by the former Cheong-gu Defendant shall be revoked.

1. Details of the disposition;

A. On July 26, 2013, the Plaintiff, an unincorporated association, transferred a religious site of 000 m2,000 m2,000 m2, 000 m2, 000 m2, and its ground (hereinafter “instant real estate”) owned by the Plaintiff to July 27, 2013, and did not report the transfer income tax to the Defendant. B. The Defendant, on July 1, 2014, deemed that a religious organization, which is deemed an individual under the Framework Act on National Taxes, transfers real estate, shall be subject to the transfer income tax, and on August 1, 2014, determined and notified the Plaintiff of the determination and notification (hereinafter “the initial disposition”), after confirming errors in calculating the acquisition value of real estate converted into the instant real estate, and notified the Plaintiff of the decision of correction to reduce the transfer income tax of 000 m2,000 m2,000 m2,000 m2,014.

D. On the other hand, on July 25, 2014, the Plaintiff was given a unique number (00-82-000) of an organization that is deemed a non-profit corporation that does not run a profit-making business from the Defendant.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 7, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Considering the fact that the Plaintiff is an organization registered with the competent authority pursuant to the provisions on the procedures for granting registration numbers for real estate registration to non-corporate associations, foundations, and foreigners, the real estate of this case is registered with the Hamyeong-gun Office, which is the competent authority; that the Plaintiff has used the real estate of this case for at least 25 years after the transfer of ownership in the name of the Plaintiff; and that the Plaintiff obtained approval from the Defendant on July 25, 2014, the Plaintiff constitutes an association registered with the competent authority pursuant to Article 13(1)1 of the Framework Act

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

Comprehensively taking account of the following circumstances recognized in light of the above facts and relevant Acts and subordinate statutes, the Plaintiff does not constitute an organization deemed a corporation under Article 13(1) of the Framework Act on National Taxes, since it is not established or registered as an organization with the permission of the competent authority. Therefore, the Plaintiff is liable to pay capital gains tax pursuant to the instant disposition.

1) Article 13(1)1 of the Framework Act on National Taxes provides that, among non-corporate associations, foundations, or other organizations, "unregistered associations, foundations, or other organizations established with the permission or authorization of the competent authority or registered with the competent authority pursuant to the law and regulations, which do not distribute profits to its members shall be deemed as juristic persons and shall be subject to this Act and tax-related Acts.

However, Article 13(1)1 of the Framework Act on National Taxes should be interpreted as a case where the establishment of a corporation satisfies the requirements for the establishment of an unincorporated association, foundation, or other organization which satisfies certain requirements among the unincorporated associations or organizations in order to specify the type of taxation subject to taxation due to the nature of tax law, and its extended interpretation is likely to infringe legal stability if it is interpreted as a corporation. Article 13(2) of the Framework Act on National Taxes provides separate provisions for an organization considered as a corporation with the approval of the head of a tax office.

2) Meanwhile, according to the evidence Nos. 2, 11, and 12, the Plaintiff is recognized to have been granted a registration number for real estate establishment by the head of Bupyeong-gu and performed the registration affairs such as the transfer of ownership to the instant real estate, but the registration number for real estate granted by the head of Pyeongtaek-gu Gun is merely for the registration of real estate by the person entitled to registration or the person liable for registration under Article 26(1) of the Registration of Real Estate Act, Article 8 of the Regulations on the Procedure for granting the registration number for real estate registration to an unincorporated association, foundation, and foreigner. The fact that the Plaintiff was granted the registration number cannot be deemed to have been said to have been the same as the Plaintiff

3) Before July 26, 2013, the Plaintiff transferred the instant real estate, there was no fact that the competent authority obtained approval from the competent authority as a corporation under Article 13(2) of the Framework Act on National Taxes. Article 3(1)1(d) of the Enforcement Decree of the Corporate Tax Act stipulates the date the competent authority obtains approval from the organization deemed a corporation as a corporation as the starting date of the business year of the corporation. Even if the Plaintiff received an identification number from the Defendant as a non-profit corporation on July 25, 2014, it cannot be deemed as a corporation approved by the competent authority prior to July 26, 2013, the date of the instant real estate transfer.

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