2011west 2019 ( May 20, 2011)

The disposition of this case that imposes capital gains tax on the premise that it is not a corporation is legitimate.

Even if the plaintiff can be deemed an unincorporated association, it cannot be deemed an unincorporated foundation. Thus, the plaintiff does not constitute a foundation with basic property contributed for the purpose of public interest as prescribed by Article 13(2) of the Framework Act on National Taxes. Unless the plaintiff who does not fall under a legal entity obtains approval under Article 13(2) of the Framework Act on National Taxes, the plaintiff cannot be interpreted as a "organization deemed a legal entity" or as a non-profit domestic corporation

Article 13(1)2 of the Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007)

2012Gudan13798 Revocation of Disposition of Imposing capital gains tax

The AAAllied Association of the Republic of Korea

Head of Mapo Tax Office

September 27, 2013

October 25, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's decision that the disposition of imposition of OOO(including additional OOO) for the transfer income tax belonging to the year 2007 against the plaintiff on April 11, 201 is revoked.

1. Details of the disposition;

A. On March 5, 1979, the Plaintiff acquired and owned each of the buildings of 147.24 square meters on the land, 156.73 square meters, 151.24 square meters on 2nd, 2006, and completed the registration of ownership transfer on July 23, 2007, after transferring the instant real estate to BB Co., Ltd. on July 23, 2007.

B. The Plaintiff did not report the transfer income tax regarding the transfer of the instant real estate, and on April 11, 201, the Defendant decided and notified the Plaintiff of the transfer income tax for 2007, the transfer income tax for the transfer of the instant real estate.

C. On May 24, 2011, the Plaintiff filed an appeal with the Tax Tribunal on May 24, 201, but was dismissed on March 8, 2012.

Facts that there is no dispute over the basis of recognition, Gap 1, 2, 3 evidence, and Eul 1 evidence (including the branch number, if any)

2. The plaintiff's assertion

For the following reasons, the Plaintiff, as a non-profit domestic corporation under the Corporate Tax Act, has transferred the instant real estate used directly for the proper purpose business as stipulated in the statutes or the articles of incorporation for more than three consecutive years as of the date of disposal, and thus, the instant disposition that was imposed by it is unlawful

A. The Plaintiff constitutes a non-profit domestic corporation under the Corporate Tax Act as a foundation with basic property contributed for public interest under Article 13(1)2 of the Framework Act on National Taxes, which falls under a non-profit domestic corporation.

B. The plaintiff is a "organization deemed a corporation, which satisfies the requirements under the subparagraphs of Article 13(2) of the Framework Act on National Taxes, with the approval of the head of a tax office, and at this time, it constitutes "organization deemed a corporation" under Article 13(2) of the Framework Act on National Taxes. Nevertheless, the defendant issued the disposition in this case on the premise that the plaintiff's identification number is not a "organization deemed a corporation" under Article 13(2) of the Framework Act on National Taxes for the reason that the plaintiff's identification number is not a "organization deemed a corporation" (the number of 89 U.S. units and 82 units and the number of 82 units are entered). Thus, the disposition in this case was unlawful because it was against the principle of protection of new society, taxation principle,

C. Since the Plaintiff’s substance constitutes a non-profit domestic corporation and cannot be said to have obtained any capital gains from the transfer of the instant real estate, the Plaintiff, despite its substance and the interpretation of the Corporate Tax Act and the Income Tax Act, is deemed as a non-profit domestic corporation, the Defendant imposed tax on the Plaintiff on the ground that the Plaintiff did not obtain approval as a “organization deemed as a corporation,” which goes against the principle of substantial taxation, the principle of equity in taxation

3. Whether the disposition is lawful;

A. Relevant statutes

It is as shown in the attached Form.

B. Determination

1) As to the first argument

Article 13 (1) 2 of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007; hereinafter the same) provides that a foundation with basic property contributed for the public interest shall be deemed a juristic person and shall be subject to the Framework Act on National Taxes and other tax-related Acts. Thus, a church generally has the nature of an association consisting of members for the purpose of worship, and the properties of a church shall belong to the collective ownership of the members, and the members shall be able to use and profit from the church properties subject to the collective ownership right within the scope of each church activity (see Supreme Court Decision 97Nu17261 of Jul. 7, 199), and it shall not be deemed a unincorporated foundation, so the plaintiff shall not be deemed a juristic person. Accordingly, the plaintiff's assertion in this part does not constitute "a foundation with basic property contributed for the public interest as provided for in subparagraph 2 of the above Article."

2) As to the second argument

Article 13(2) of the former Framework Act on National Taxes provides that "this Act and other tax-related Acts shall apply to a corporation which satisfies certain requirements among unincorporated organizations, other than associations, foundations, and other organizations, and for which the representative or manager has obtained approval from the head of the competent tax office." Considering the overall purport of arguments in Gap 5, 6, 8, Eul 2-1, 3-1, the plaintiff submitted an application to the defendant on July 29, 2003 for business registration under Articles 5(1) and 25(3) of the former Value-Added Tax Act (amended by Act No. 6905 of May 29, 2003; hereinafter the same shall apply), the plaintiff submitted an application to the defendant for business registration under Article 13(2) of the former Value-Added Tax Act, and the plaintiff's initial business registration number (O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-2 of the plaintiff's-2, regardless of its approval.

3) As to the third argument

Under the principle of no taxation without law, the requirements for tax exemption or tax exemption are vague, and the interpretation of tax laws is not allowed to be expanded or analogically interpreted without reasonable grounds, barring special circumstances. Thus, insofar as the Plaintiff who does not fall under a corporation does not obtain approval under Article 13(2) of the Framework Act on National Taxes, the Plaintiff cannot be construed as a “organization deemed a corporation” or as a non-profit domestic corporation under the Corporate Tax Act. The Plaintiff’s assertion is without merit.

4) Sub-committee

Therefore, this case's disposition imposing capital gains tax on the premise that the plaintiff is not a "organization deemed a corporation" is legitimate.

4. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.