Seoul Administrative Court Decision 2014Guhap6045 decided January 30, 2015

Revocation of Disposition Imposing Corporate Tax

Whether an asset in the non-profit sector falls under the earnings in view of the exhibition evaluation and disposal of the amount thereof.

Article 74 of the Restriction of Special Taxation Act

2015Nu3649 Revocation of Disposition of Imposing corporate tax

A. School Foundation

Head of Sungbuk Tax Office

October 29, 2015

December 10, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

the Gu Office's place of service and place of service

1. Purport of claim

The Defendant’s disposition of imposing corporate tax of 5,192,52,660 (including additional tax) for the business year 2007 against the Plaintiff on January 11, 2013 (hereinafter “the claim of the complaint on January 15, 2013”) is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is as follows, and thus, it is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

Parts used for cutting.

According to the separate accounting principle in the fourth 4th 17-18, the transaction between profit-making business and non-profit-making business is an internal transaction between profit-making business and non-profit-making business, but it must be perceived as the transaction between third parties.

○ The sixth side "(including bonuses)" in the 19th (including bonuses) shall be read as "(including surplus earnings)".

The second part of ○○ is "for-profit business sector". The second part is "for-profit business sector".

○ If the property belonging to the opposite or other business is used for profit-making business in Part 13 of title 9.

(1) The term "in the event that the assets belonging to the profit-making business are disbursed to any other business".

○ 11. 7 to 19. 7. The parts of paragraphs are as follows.

7) The defendant asserts that "as the plaintiff offsets the market price (=total book value and appraised profit) of 5,412,567,930 won by the reserve fund for proper purpose business under general rule 113-1563 of the Corporate Tax Act while transferring the real estate in this case to the proper purpose business, the defendant asserts that "the remaining appraised profit, which remains after deducting the book value of 2,432,489,821 won of the real estate in this case from the above amount in accordance with the principle of double-entry bookkeeping, shall be included in gross income."

However, in the instant case, where assets for profit-making business of a non-profit corporation are transferred to a proper purpose business, it shall be deemed as transfer of assets, not the transfer of assets, and its evaluation profits are temporarily appropriated as items such as capital adjustment and did not be reflected in the current profit and loss (if the accounts are disposed of to a third party after the settlement of accounts, the principle of balance of loans and loans is satisfied). Thus, it is possible to finally treat the evaluation profits as profits and losses (see, e.g., reference materials attached to the written brief dated September 3, 2015 of the Plaintiff). Thus, it cannot be deemed that the evaluation profits of the instant real estate should be counted in the gross income for 207 business

(8) Article 3(2) of the Corporate Tax Act provides that income for each business year of a non-profit domestic corporation shall be income generated from any of the following businesses or revenues (hereinafter referred to as "profit-making business"). Thus, even if a non-profit domestic corporation has income, corporate tax shall not be imposed unless such income is derived from profit-making business. In determining whether a business falls under a profit-making business, the relationship with the purpose of business, such as whether the profit earned from the business is to achieve the proper purpose of the relevant corporation, shall not be considered. However, in order to operate the business for profit-making business, the business itself shall be at least 80Nu278, Nov. 11, 1980; 95Nu1435, Jun. 14, 1996; 2003Du12455, Sept. 9, 2005; 2013Du13645, Nov. 28, 2013).

In this case, in light of the following circumstances: (a) the Plaintiff engaged in real estate rental business, which is a profit-making business, using the instant real estate, and transferred the real estate to a profit-making business to use it as a bbb operating facility, it cannot be deemed that the real estate in this case was transferred to a profit-making business in itself to a profit-making business or for profit-making business; and (b) even if it is assumed that the real estate in this case was transferred to a profit-making business, it cannot be deemed as included in the scope of taxable income

(3) As to the Defendant’s conjunctive assertion

The defendant asserts that "it is not possible to interpret the transfer of the real estate of this case to a proper purpose business as a disposal of fixed assets, only 2,432,489,821 won, which is the book value of the real estate of this case, shall be deemed as the amount transferred to a proper purpose business for tax purposes. Since the appraisal profit of the real estate of this case for which the plaintiff reserved inclusion in the calculation of earnings cannot be deemed as the amount transferred to the proper purpose business, only the book value of the real estate of this case shall be offset from the proper purpose business for proper purpose business in 2002. Thus, among the proper purpose business reserve funds appropriated as deductible expenses in 8,316,571,841 won, the book value of the real estate of this case shall not be used until the end of 206 business year, 4,950,492,821 won, and other 1,380,836,645 won, which is the remaining amount offset by the amount used for proper purpose business for tax purposes of this case of this case in 2007."

그러나 앞서 본 바와 같이 수익사업용 자산을 고유목적사업에 전입하는 경우 고유목적사업준비금과 상계하는 자산가액은 시가에 의하여야 하므로[앞서 인용한 제1심 판결문 제9쪽 제11~16행 ②항 부분; 과세관청도 종래 마찬가지로 해석하고 있었다 ⎨국세청 서이46012-10843, 2003. 4. 22., 서면인터넷방문상담2팀-1376, 2006. 7. 20. 및 피고가 이 사건 처분의 근거로 삼은 기획재정부의 질의회신(법인세제과-364, 2012. 5. 16.)], 이와 다른 전제에 기초한 피고의 예비적 주장 역시 받아들일 수 없다.

2. Conclusion

Therefore, the judgment of the first instance court is just, and the defendant's appeal is dismissed as it is groundless.