Examination Income 2008-0110 (Law No. 8.25, 2008)

The amount received as a result of returning the land trusted to a clan to a clan shall constitute other income with the agreed money.

It is reasonable to view that the agreed money received by the Plaintiff, a title trustee, from returning the land held in title to a clan, was paid as compensation for returning the land to the clan, and it cannot be deemed that the remuneration for waiver of the right to distribute as a member is included in the agreed money.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of global income tax of KRW 73,412,560 for the Plaintiff on March 3, 2008 shall be revoked.

1. Circumstances of dispositions;

가. @@최씨 @@공파 @@파 종중(이하 소외 종중)의 원고에 대한 소송 내역

(1)2004.5.7. 원고를 상대로 원고 명의의 @@시 @@동 283-29 임야 694㎡등 15필지 합계 60,868㎡(이하 이 사건 토지)에 관하여 명의신탁해지를 원인으로 한 소유권이전등기절차 이행의 소 제기(대정지방법원 천안지원 2004가합1229호).

(2)Withdrawal of the action after agreement with the Plaintiff on March 29, 2005 with the following contents:

The plaintiff shall return the land of this case to a clan and withdraw the objection against the provisional disposition regarding the land of this case, and the non-party clan shall withdraw the clan. The plaintiff shall recognize that the land of this case is the property of the non-party clan, and the agreement shall be null and void if the non-party clan excluded the plaintiff when disposing

(3) On September 5, 2005, the plaintiff filed a lawsuit claiming for the performance of the procedure for ownership transfer registration against the plaintiff on the land of this case ( Daejeon District Court Decision 2005Gau3406)

(4) On September 13, 2005, the conclusion of a sales contract to sell the instant land in KRW 32 billion to the ▽▽▽△△ Construction Co., Ltd.

(5) The plaintiff on May 30, 2006 and the plaintiff on May 30, 2006 and the plaintiff on May 3, 2006 to establish a voluntary conciliation of the following contents (hereinafter

The non-party clan shall pay 2 billion won to the plaintiff, the plaintiff shall transfer its registration, and all criminal complaints filed against the non-party clans shall be revoked. The plaintiff recognizes that the land of this case is owned by the non-party clans. The plaintiff waives his/her right to distribute the proceeds of the sale of the land of this case as a member, and the non-party clans shall not impose his/her duty to pay to the plaintiff as

(6) On June 30, 2006, Plaintiff 200 million won (hereinafter “the instant money”) from Nonparty clans of this case

B. The defendant's disposition ( March 3, 2008)

The instant money received by the Plaintiff is deemed as other income under Article 21(1)17 of the Income Tax Act, and is subject to imposition of global income tax of KRW 73,412,560 for the year 2006 on the Plaintiff.

[Ground of recognition] Facts without any dispute, Gap evidence 3, 4, 8-1 to 3, Eul evidence 1, 2, 3-1, 7-9, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The agreed amount of this case was paid in return for the waiver of the right as a closing source to the land and the sale price of this case, which was originally owned by the plaintiff. Therefore, the amount of this case is not "other income under the Income Tax Act".

(b) Fact of recognition;

(1)The plaintiff, who was the member of his clan, was the member of his clan, ○○, who was his descendant, was the father of the plaintiff, and △△△△△.

(2)소외 종중은 1927.7.20.경 종중 소유의 @@시 @@동 116 일대 토지(이 사건 토지 인근에 위치)를 원고의 할아버지 □□ 명의로 소유권보존등기를 하였고, 1962년경 원고 명의로 소유권이전등기를 경료하였다가 3일 후 다시 소외 종중 4개 분파 대표자 4명 명의로 소유권이전등기를 경료하였다.

(3) The instant real estate was registered in the land cadastre in the name of △△, but around August 10, 1971, the Plaintiff filed registration of preservation of ownership pursuant to the Act on Special Measures for the Registration of Real Estate with respect to eight parcels of the instant real estate, and seven parcels of the instant real estate around March 19, 1981.

(4) On September 9, 1993, at the time of the non-party clan being the chairperson of the non-party clan, the plaintiff prepared a letter "as of September 9, 1993, the family property in his name is to be transferred to the name of the clan" and delivered it to the non-party clan.

(5) On March 19, 199, △△△△, a land manager of the instant case, leased part of the instant land from the non-party clan.

(6)In order to manage 19 seedlings on the land of this case from around 1980 to prepare an annual agenda. The Do governor submitted a confirmation letter to the effect that the property tax of this case has been paid to the non-party clan.

[Grounds for Recognition] Facts without any dispute, Gap's 13 evidence, Eul's 4, 5, and 6-1, and 6-2, the purport of the whole pleadings

C. Determination

(1) Whether title trust is held

In light of the above facts and all the circumstances revealed in the pleading, such as the fact that the non-party clan was already in an organic organization, the circumstance that the last Dom was involved in the management of the non-party clan's property, the status and management status of the land of this case, the payment relationship of taxes and public charges, and the fact that the plaintiff had already agreed with the non-party clan for the same purpose on March 29, 2005 and May 30, 2006, it is reasonable to deem that the non-party clan was entrusted to the plaintiff with the ownership of the land of this case and completed the registration of ownership transfer in the future.

(2) The nature of the agreement of this case

In light of the following circumstances, it is reasonable to deem that the agreement of this case was paid as compensation to the non-party to the clan by the plaintiff who is the title trustee for the return of the land of this case, and it cannot be deemed that the compensation for the waiver of the right to distribute the sale price of this case as a member of the clan is included in the agreement of this case,

(A) Although the amount of the instant agreement is not specified, the ratio of the proceeds from the sale of the instant land is only 6%.

(B) Even before the agreement of this case was reached, the Plaintiff did not comply with the agreement even though it agreed to return the land of this case to the non-party clans, and the Defendant filed a criminal complaint against the non-party clans. Meanwhile, the non-party clans concluded the land sale contract of this case immediately before filing a lawsuit for the case No. 2005Gahap3406 with the Supreme Court Decision 2005Gahap3406, but it appears that the Plaintiff actively denied the title trust relationship even in the lawsuit of this case.

(c)According to the evidence No. 17 (Rules on Distribution of Property for the clans), the non-party clans decided to hold a general meeting at the time of the agreement of this case to distribute part of the proceeds of the sale of the land of this case to the members of the clans, while it is recognized that the non-party clans decided to set general criteria for the sale of the land of this case, and decided to exclude or make differential payments for the "persons who interfere with the business of the clans for the purpose of social welfare, persons who damaged the reputation of the clans, and persons who damaged the reputation of the clans" (Article 7).

(D) In light of the fact that Article 3 of the above Rules on Distribution of clan Property requires the preferential payment of the clans money, which is necessary expenses, from the proceeds of the sale of the land of this case, the Plaintiff asserts that the agreement of this case constitutes a distribution of clans. However, there is no evidence to acknowledge that the above provision is a provision premised on the payment of the Plaintiff’s share of the clans. However, there is no evidence to acknowledge that the content of the provision is a provision under the premise of the payment of the Plaintiff’s share of clans as necessary expenses.

(f) The meaning of the Plaintiff, at the time of the instant agreement, agreed to waive the right to distribute the instant land as a member, is to not claim any right related to the property to the non-party clan instead of receiving a considerable amount of the instant agreement from the non-party clan in return for the settlement of disputes regarding the instant land, and it does not seem to have received the instant agreement in return for the waiver of the right to distribute.

(3) Accordingly, the disposition of this case where the defendant regarded the money of this case as "other income under Article 21 (1) 17 of the Income Tax Act" is legitimate.

3.In conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.