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Case Number of the immediately preceding lawsuit
Gwangju District Court-2015-Gu Partnership-1721 ( November 12, 2015)
Case Number of the previous trial
early 2015 Mine46 (22 April 22, 2015)
Title
It is established that a clan is a naturally created family organization, and there is no special organization.
Summary
A clan within its unique meaning is a naturally occurring family organization formed by descendants of a common ancestor for the purpose of protecting the graves of the ancestor, protecting the remains of the ancestor, promoting friendship among descendants, and is established by losses at the same time as the death of the ancestor, even if there is no special organization.
Related statutes
Article 88 (Definition of Transfer) of Income Tax Act
Article 162 of the Enforcement Decree of the Income Tax Act: Time of Transfer or Acquisition
Cases
Gwangju High Court 2015Nu7448 Revocation of Disposition of Imposing capital gains tax
Plaintiff and appellant
○ Of species ○
Defendant, Appellant
○ Head of tax office
Judgment of the first instance court
Gwangju District Court 2015Guhap11721 Revocation of Disposition of Imposing capital gains tax
Conclusion of Pleadings
2016.09.08
Imposition of Judgment
o October 13, 2016
Text
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
Purport of claim and appeal
The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax of KRW 94,312,120 against the plaintiff on August 1, 2014.
Reasons
1. Quotation of judgment of the first instance;
In addition to adding the following judgments, the reason for the original decision is the same as the entry of the decision of the first instance, and thus, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.
2. Additional determination
A. The plaintiff's assertion
Around 1960, the Plaintiff did not title trust the previous real estate to KimE, and even if the five members of the Plaintiff, even if they title trust the previous real estate to KimE before 1960, insofar as the Plaintiff could not be deemed to have had a substance as a clan at the time, the instant disposition based on the premise that the Plaintiff acquired each of the previous real estate by way of title trust was unlawful, since the Plaintiff cannot be deemed to have held the title trust with KimE, since the Plaintiff’s acquisition of each of the previous real estate in around 1960.
B. Determination
A clan within its unique meaning is a naturally occurring family organization formed by descendants of a common ancestor for the purpose of protecting the graves of the relevant vessel, protecting the remains of their specifications, promoting friendship among descendants, and that is established by descendants at the same time as the death of the relevant vessel, even if there is no special organization (see, e.g., Supreme Court Decisions 2002Da4863, May 10, 2002; 201Da64607, Jan. 10, 2013).
In full view of the overall purport of the arguments and the testimony of Gap's 3, 4, 6, 8 through 12, Eul's 2, and Eul's 2,4 through 6, and KimB's testimony, the plaintiff is a clan that is a joint organization of 00cc Kim 26, and the plaintiff's 20, including his son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's Professor's Professor's Professor'.
Indication of Real Estate
Date of receipt of registration
Date of cause of registration;
Ownership
Title holder
Previous Real Estate
○○○-si ○○ ○○ 345-1
21,421㎡
CC Kim
April 10, 1928
April 4, 1928
D Kim D Kim
on July 1, 1971
February 2, 1948
KimE
June 10, 1994
on October 30, 1974
Plaintiff
Busan 678-2 Forest Land 4,661 square meters
CC Kim
on July 27, 1971
may 3, 1947
KimE
June 10, 1994
on October 20, 1974
Plaintiff
Busan 345-2 Forest Land of 793 square meters in the same Ri
CC Kim
April 10, 1928
April 4, 1928
D Kim D Kim
on July 27, 1971
February 2, 1946
KimE
June 10, 1994
October 25, 1974
Plaintiff
Other real estate
2123m28,873m2
April 21, 1939
April 20, 1940
FF Kim
KimE
December 31, 1994
December 5, 1976
Plaintiff
2,089 square meters per annum 2379 square meters
may 4, 1950
on June 20, 1948
FF Kim
KimE
December 31, 1994
December 30, 1975
Plaintiff
678-2 Before 10,046 square meters in the same Rio 678-2
(At present, 2435-1, 2435-3)
on March 26, 1928
CC Kim
March 17, 1995
on December 20, 1974
Plaintiff
The same Ri 345-3 10,258 square meters
(At present, 2420-1)
April 10, 1928
April 4, 1928
CC Kim
D Kim D Kim
March 24, 1995
February 10, 1970
Plaintiff
In light of the above facts, the plaintiff asserted that the previous trial procedure for the disposition of this case and the first instance court held the GimE under title trust for the former real estate, the plaintiff acquired each of the previous real estate and held the title trust for the members of the clan in around 1960, and had the substance of the clan. Thus, the plaintiff's assertion on the different premise is without merit.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is so dismissed as it is so decided as per Disposition.