National Tax Service Review Corporation 201-003 (201.04.09)

Any disposition which is deemed to have discharged a debt without obligation and has been given notice of change in income amount as bonus is lawful.

If the plaintiff (individual) established the account of the withdrawal money incurred in the course of the operation of the hospital, changed the account of the medical corporation to the account of the receipts and disbursements of the medical corporation, and subsequently the medical corporation repaid the amount to an individual, it is legitimate to give notice of the change in the amount of income as bonus for which the medical corporation has discharged the obligation not to pay the amount to the individual, and it is reasonable to give notice of the change in the amount of income.

2011Guhap1462 Notice of Change in Amount of Income, etc.

AAA Foundation and one other

Head of Cheongju Tax Office

December 29, 2011

January 19, 2012

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On October 1, 2010, the Defendant revoked all notice of change in the income amount of 648, 923, 514, 434,00,000, 2007, 74,859, and 695, the income amount of 2008 business year of 2006, in which the Plaintiff medical corporation AAB had the income earner as the Plaintiff lowestB, and revoked the disposition of 59,983,090,090, the income amount of 2004 business year of 2007.

1. Details of the disposition;

A. The plaintiff medical corporation AA foundation (hereinafter referred to as "the plaintiff medical corporation") is a medical corporation established on September 9, 2004 to establish and operate a medical institution, and the plaintiff lowestB operated the hospital under the trade name "AA hospital" from March 5, 2002 to September 8, 2004, and thereafter the plaintiff medical corporation was established as the representative of the plaintiff medical corporation until now.

나. 피고는 2010. 7. 13.부터 2010. 7. 30.까지 원고 의료법인을 세무조사하였는데，① 원고 최BB이 원고 의료법인을 설립할 당시 'AAA병원' 운영과정에서 발생된 인출금 계정을 원고 의료법인을 설립하면서 원고 의료법인의 가수금 계정으로 변경하였고, 원고 의료법인이 원고 최BB에게 위 가수금 중 2006년 648，923，514원, 2007년 434，000，000 원, 2008년 74，859，695원을 각 변제한 사실，② 그리고 원고 최BB이 자신의 주식회사 QQ은행(다음부터 'QQ은행'이라고 한다)에 대한 4，403，269，520원의 채무를 원고 의료 법인이 인수하는 것을 조건으로 자신 소유의 청주시 OO동 00-0 대 2，785㎡, 같은 동 00-0 대 3，861㎡(다음부터 '이 사건 토지'라고 한다) 및 그 지상건물 중 1/2 지분을 원고 의료법인에 출연하고, 2004. 12. 2. 위 부동산에 대하여 증여를 원인으로 소유권이전등기를 마쳐준 사실 등을 확인하였다.

C. Accordingly, the Defendant, (i) deemed the repayment of the obligation to the Plaintiff’s medical corporation to be due, and (ii) deemed the repayment of the obligation to the Plaintiff’s bestB to be a bonus to the Plaintiff, and (iii) took each disposition of income as a bonus from the Plaintiff’s lowestB on October 13, 2011, and then imposed the Plaintiff’s income amount of 648,923,514, 2006 business year income amount of 2007 business year 434,000,000, 2007 business year income amount of 74,859,695, and 208 business year income amount of 208 (hereinafter “instant disposition of income change”) on November 5, 2010 on the ground that the Plaintiff’s bestB made the donation to the Plaintiff medical corporation, and imposed the transfer income tax from 309,090 to 309 (hereinafter “instant disposition”).

D. The Plaintiffs were dissatisfied with each of the above dispositions and filed a request with the Tax Tribunal for adjudication, but the Plaintiff’s medical corporation on June 2, 201, and Plaintiff LBB’s request on April 11, 201, respectively, was dismissed.

[Ground of recognition] Facts without any dispute, Gap evidence 1 to Gap evidence 3, Eul evidence 1 to Eul evidence 3 (including the number of branches), the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

1) As to the notice of change in the income amount of this case

Plaintiff LB had the right to withdrawal and return of KRW 1,953,913,385 in total to 'AAAA Hospital' by investing KRW 776,825,76, and KRW 1777,087,619 in the joint operation of Non-Party F and 'AAA Hospital'. Plaintiff LB had the right to make comprehensive transfer and acquisition of the rights and obligations with respect to the business of 'AAAA Hospital' upon the establishment of the medical corporation, and made contributions to the medical corporation of the Plaintiff, and made comprehensive transfer and acquisition agreements with which the Plaintiff would comprehensively take over all the rights and obligations with respect to the business of 'AAA Hospital'. Plaintiff B had the right to receive reimbursement of KRW 150,00,000 except for 150,000,000 and 180,3913,385 to the medical corporation of the Plaintiff at the time of the establishment of the medical corporation, but it was not unlawful for the medical corporation of the Plaintiff at the time of the establishment.

2) As to the imposition of transfer income tax of this case

A) On December 2, 2004, Plaintiff LB completed the registration of ownership transfer for one-half portion of the instant land and its ground buildings to the Plaintiff medical corporation on the ground of donation. The instant disposition was made after five years from the exclusion period for imposition of capital gains tax, and was unlawful.

B) Even if the instant disposition was made within the exclusion period, under Article 96(1)6 of the former Income Tax Act, which was enforced at the time of transfer registration of ownership of the said real estate, the actual transaction value shall be the transfer value in cases where the transferor files a return on the actual transaction value at the time of transfer and acquisition along with evidential documents to the head of the tax office having jurisdiction over the place of tax payment by the due date of final return. Article 45-3(1) of the Framework Act on National Taxes provides that a person who fails to submit a tax return within the statutory due date of return and has the amount of tax payable under the tax-related Acts may submit a standard tax return within the due date until the head of the competent tax office determines the tax base of national tax and the amount of tax are notified. However, on August 5, 2010, the Plaintiff LB reported the transfer income tax to the Defendant on the basis of the actual transaction value, but the Defendant returned the transfer income tax based on the actual transaction price before the Defendant determines the tax base and the amount of tax are notified.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

1) 원고 최BB은 2002. 9. 25. QQ은행과 사이에 이 사건 토지에 대하여 채무자 송FF(원고 최BB의 처남임), 채권최고액 일본국 엔화 720，000，000엔으로 정한 근저당권설정계약을 맺고, 이 사건 토지 지상에 지하 1층, 지상 5층의 건물(다음부터 '이 사건 건물'이라고 하고, 이 사건 토지와 이 사건 건물을 합하여 '이 사건 부동산'이라고 한다) 을 신축하여 송FF과 각 1/2 지분에 관한 소유권보존등기를 마친 후 2003. 3. 7. 신한은 행과 사이에 이 사건 건물을 위 근저당권의 담보로 추가하는 내용의 근저당권설정계약을 맺었으며, 송FF의 QQ은행에 대한 위 대출금채무를 연대보증하였다.

2) While operating the “AA Hospital, Plaintiff LB disbursed money to use it for the new construction cost, operating cost, etc. of the instant building, and recovered the revenue of the hospital, and included it in the capital item in the balance sheet while managing it as the account for the withdrawal money. Plaintiff LB appropriated the amount in the balance sheet on September 8, 2004, which was the day before the establishment of the Plaintiff medical corporation. Plaintiff LB appropriated the amount in the above withdrawal account, 1,157,783, and 209, which was the amount in the above withdrawal account, as the sum of KRW 19,304,610, and 177,087, and 619 (hereinafter referred to as the “the amount in this case”) on the balance sheet, “AAA Hospital”, and included it in the debt item, and after the establishment of the Plaintiff medical corporation, it included the amount in the accounting of the Plaintiff medical corporation as the debt item.

3) Plaintiff LB decided to establish the Plaintiff medical corporation along with Nonparty SongG, NohH, Kim II, NewJ, Park K, and Park LL. On August 20, 2004, Plaintiff LB held a meeting of promoters for the establishment and appointed Plaintiff LB as the president. Of the above articles of incorporation and the above contents of the meeting of promoters for the establishment, the parts related to the instant case are as follows.

4) On August 25, 2004, Plaintiff LB filed an application with the Cheongbuk-do Governor for the establishment of the Plaintiff medical corporation, and the Cheongbuk-do Governor established the Plaintiff medical corporation with the Plaintiff LB on September 3, 2004, and the registration of incorporation was completed on September 9, 2004 for the Plaintiff medical corporation. Of the documents attached to the above application for permission for establishment, the part related to the instant case is as follows.

5) On September 8, 2004, the day immediately before the registration of incorporation for the Plaintiff medical corporation was completed, the Plaintiff LB and SongF drafted a comprehensive transfer and acquisition agreement with the Plaintiff LB and SongF as the transferor, and the Plaintiff medical corporation as the transferee. Of the contents, the parts related to the instant case are as follows.

6) The registration of ownership transfer was completed on October 11, 2004 on the ground of the gift made by the Plaintiff, but the Plaintiff medical corporation was exempted from the acquisition tax and registration tax on the ground that the Plaintiff acquired the instant real estate by comprehensively taking over all rights and obligations related to the “AAA Hospital”’s business.

7) The Plaintiff medical corporation paid the Plaintiff lowestB totaling KRW 648,923,514 in 2006, totaling KRW 434,000,000 in 207, and totaling KRW 74,859,695 in 2008.

8) On August 5, 2010, under the tax investigation period relating to the instant case, Plaintiff LB declared capital gains tax on the Defendant on August 5, 2010 on the instant land and the instant building based on the actual transaction price.

[Ground of recognition] Facts without dispute, Gap evidence 4, Gap evidence 5, Gap evidence 7 through Gap evidence 12, Eul evidence 4 to Eul evidence 8, the purport of whole pleadings

D. Determination

1) As to the notice of change in the income amount of this case

A) In full view of the purport of the entire pleadings, the following circumstances are revealed.

(1) It cannot be deemed that an individual’s business is registered with a separate trade name while running a business, and a separate account is managed to enter and depart from the account as required for tax accounting, and a juristic person or an organization equipped with a separate legal capacity with the individual’s legal capacity cannot be deemed to be established. Therefore, it cannot be deemed that an individual has any right to claim a return against the individual solely on the ground that the individual has disbursed the money necessary for the business, and it cannot be deemed that the individual has any right to claim a return on the individual’s own, because the established claim and debt belong to the same subject

In addition, it is only for the creditors to easily understand the content of responsible property by making an individual’s financial status at a certain point, and at the same time, to identify the income accrued in relation to the individual’s business and to pay taxes based on the individual’s identification of the income generated in relation to the business. Therefore, even if an individual’s accounting accounts are kept differently in relation to the business conducted by the individual, it is not another other party to pay the individual’s obligations, such as the plaintiffs’ assertion.

(2) Meanwhile, although the actual cash revenue was actually received, it refers to the account temporarily dealing with cash revenue if the account item or amount is not fixed because the contents of the transaction are unclear or not closed, and since such account is a temporary account item with a nature, the end of the fiscal term for the settlement of accounts at the latest shall be replaced by the final and conclusive account item after clarifying the details. However, in this case, in the operation of the "AAB hospital", the plaintiff most BB should include the amount paid in connection with the operation of the hospital and collected from the hospital in the capital item on the balance sheet on September 8, 2004, which was the day before the establishment of the medical corporation but was appropriated in the capital item on the balance sheet, which was the day before the establishment of the plaintiff medical corporation, in lieu of the above bank account, the sum of the amount on the balance sheet, which was the sum on the debt receipt account at the time of the above bank account, and shall not be included in the above amount on the balance sheet, but it should not be included in the debt amount immediately before the registration of the plaintiff.

(3) According to the comprehensive transfer and acquisition agreement between the Plaintiff LB, Nonparty F and the Plaintiff medical corporation, the Plaintiff medical corporation decided on September 8, 2004 to comprehensively acquire all rights and obligations, such as the balance sheet and the total amount of assets and liabilities based on the income statement, in relation to the operation of the Plaintiff LB Hospital, as of September 8, 2004. Accordingly, the fact that the Plaintiff medical corporation acquired the instant real estate and was exempted from the acquisition tax and the registration tax is recognized as above. However, as seen above, the Plaintiff’s right to claim the return of the instant money against the “AB Hospital” was not established, and thus, the right to claim the return of the instant money is not included in the subject of the comprehensive transfer and acquisition.

(4) 또한, 구 의료법(2007.4.11. 법률 제8366호로 개정되기 전의 것) 제41 조, 제44조, 동법 시행령(2007.9.28.대통령령 제20292호로 개정되기 전의 것) 제17조, 동법 시행규칙(2005.10.17.보건복지부령 제333호로 개정되기 전의 것) 제34조에 의하면, 의료법인을 설립하려는 자는 정관, 재산목록 및 기부신청서 등의 서류를 첨부하여 그 법인의 주된 사무소의 소재지를 관할하는 시 • 도지사의 허가를 받아야 하고, 의료법인에 대하여 의료법에 규정된 것 외에는 민법 중 재단법인 규정을 준용한다고 각 규정하고 있다. 한편 현행 민법뿐만 아니라 다른 법령상으로도 재단법인 등 비영리법인의 설립허가 에 관한 구체적인 기준이 정하여져 있지 않으므로, 원고 의료법인과 같은 비영리법인의 설립허가를 할 것인지 여부는 주무관청의 정책적 판단에 따른 재량에 맡겨져 있다고 할 것이다(대법원 1996. 9. 10. 선고 95누18437 판결 등 참조). 그런데 이 사건에서 원고 의료법인에 대한 정관에는 이 사건 부동산을 원고 의료법인의 기본재산으로, 기본재산 이외의 나머지 재산을 보통재산으로 분류하였고, 원고 최BB이 충청북도지사에게 원고 의료법인에 대한 설립허가를 신청하면서 첨부한 출연재산목록에는 기본재산으로 이 사건 부동산이, 보통재산으로 예금, 차량, 의료장비만이 기재되어 있고, 재산의 기부신청서에 는 원고 최BB의 QQ은행에 대한 기존 대출금채무만 기재되어 있었고 이 사건 금원은 채무로 기재되어 있지 않았던바, 충청북도지사는 이러한 출연재산목록을 토대로 원고 의료법인의 장래 사업규모나 사업내용의 적정성 등을 심사하여 이를 허가하였던 것이므로, 가사 원고들의 주장처럼 'AAA병원'의 원고 최BB에 대한 이 사건 금원의 반환채무가 존재한다고 가정하더라도 이를 원고 의료법인에 출연하였다고 보기도 어렵다.

(5) Furthermore, as in the instant case, if an individual entrepreneur included funds, etc. required for the management of accounts in a separate account, as the obligation for the acquisition of active properties necessary for the management of the business, and an incorporated foundation establishes an incorporated foundation upon authorization and permission from the competent administrative agency, by raising only active properties in the process of establishing a property list, and allow the incorporated foundation to pay its debts to the contributors, then the incorporated foundation shall return the contributed assets, which are the basis of the management of the incorporated foundation, to the contributors. It is extremely unfair as it damages the sound financial status of the incorporated foundation.

B) In full view of the above circumstances, even if Plaintiff LB paid the instant money to Plaintiff LB while operating the AA Hospital and kept accounts on account of its investment and operating expenses, it cannot be deemed that “AAA Hospital” bears the obligation to return the instant money to Plaintiff LB, as alleged by the Plaintiff, since the expenses paid for its own business cannot be deemed to be identical to the subject to whom the rights or obligations are attributed, and thus, it cannot be deemed that “AA Hospital” bears the obligation to return the instant money to Plaintiff LB. In addition, even if the AA Hospital bears the obligation to return the instant money, such as the Plaintiff’s assertion, it cannot be deemed that Plaintiff BB made the contribution while establishing the AA Hospital. Accordingly, the Plaintiff’s assertion does not appear to have any reason. Accordingly, even if Plaintiff AA Hospital did not have any obligation to pay the instant money to Plaintiff LB, the Plaintiff medical corporation did not have any obligation to pay the said money in total for the year 2006, 648925 won, 2007, 000, 00008 won and 98.

2) As to the imposition of transfer income tax of this case

A) On the assertion that the exclusion period has expired

(1) According to Article 26-2(1)2 of the former Framework Act on National Taxes (amended by Presidential Decree No. 8139 of Dec. 30, 2006) and Article 12-3(1) and (1)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19893 of Feb. 28, 2007), the exclusion period for imposition in cases where a taxpayer fails to file a tax base return within the statutory due date of return shall be seven years from the date on which the pertinent national tax can be assessed. A national tax, the tax base and tax amount of which are reported, shall be the date on which the following day following the due date of filing the tax base and tax amount of the relevant national tax and the due date of filing

(2) In light of the above relevant laws and regulations, even if the plaintiff Dop and B completed the registration of ownership transfer for the land of this case and the building of this case on December 2, 2004 on the ground of donation, the fact that the plaintiff Dop and 1/2 did not submit a tax base return to the defendant by May 31, 2005, which is the statutory due date of return, is recognized as above. Therefore, the exclusion period of imposition of the transfer income tax of this case shall be seven years, and this disposition shall take place from June 1, 2005, which is the day following the statutory due date of return, and the fact that the transfer income tax of this case was made on October 5, 2010, which is within seven years from the above initial date of return, is also recognized as above. Accordingly, this part of the plaintiff P's assertion is without merit.

B) As to the assertion that should be calculated on the basis of the actual transaction price, (1) review of the relevant legislation

(A) According to Articles 96(1)6 and 110(1) and (2) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005), income from transfer of real estate shall be based on the standard market price at the time of transfer of such real estate: Provided, That where the transferor files a return on the actual transaction price at the time of transfer and acquisition to the head of a tax office having jurisdiction over the place of tax payment from May 1 to 31 of the year following the corresponding year along with evidential documents, the actual transaction price between the transferor and the transferee shall be based on the actual transaction price, and where the resident having jurisdiction over the transfer amount in the corresponding year files a final return on the tax base of transfer income between May 1 to 31 of the year following the corresponding

(B) Meanwhile, Article 45-3(1) of the Framework Act on National Taxes provides that a person who fails to file a return of tax base by the statutory due date of return may file a return of tax base after the due date until the head of the competent tax office determines and notifies the tax base and amount of the relevant national tax pursuant to the tax law. This provision provides for the convenience of taxpayers by granting

(2) Determination

(A) In light of the content and purport of the aforementioned relevant laws and regulations, the fact that the transfer income was not reported to the Defendant by May 31, 2005, which was the final return date, even though the transfer income was due to the transfer of the land of this case and the 1/2 share of the building of this case among the land of this case and the building of this case, the income from the transfer of the 1/2 share among the land of this case and the building of this case shall be based on the standard market price at the time of transfer.

(B) Plaintiff B filed a return after the deadline under Article 45-3 of the Framework Act on National Taxes, claiming that the transfer income amount for one-half portion of the instant land and the instant building should be calculated on the basis of the actual transaction price. However, a report after the deadline under the above provision is to promote the convenience of taxpayers by granting an opportunity to reduce penalty pursuant to a non-declaration, and Article 110(1) and (2) of the former Income Tax Act provides that the filing of a final return on the tax base of transfer income to the head of the tax office having jurisdiction over the place of tax payment from May 1 to May 31 of the year following the corresponding year, on the ground that the resident who has the transfer income in the corresponding year filed a return after the deadline under Article 45-3 of the Framework Act on National Taxes, cannot be deemed to have reached the final return deadline under Article 110(1) and

(C) Therefore, the Plaintiff mostB’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed in entirety as it is without merit. It is so decided as per Disposition.