탈퇴 조합원의 소득 구분과 처분사유의 변경 - 대상판결 : 대법원 2019. 1. 17. 선고 2016두513 판결 -

Association refers to a union of several persons who are combined for the same purpose, but have not yet established a system as an organization(a corporation or non-corporate association) due to the strong individuality of members. Regarding tax obligations for these unions, Article 13 of the Framework Act on National Taxes recognizes the status of an “organization deemed to be a corporation” under the tax law only if the requirement to “not distribute profits to members” is met. If the distribution ratio of profits among members is determined and the distribution ratio is confirmed for each member, or if the profits distributed by members are confirmed, each member, not an organization, is a taxpayer (Article 2, Paragraph 3 of the Income Tax Act). If a member withdraws from the union, the stake will be returned according to the investment ratio, and the Supreme Court sentenced on January 17, 2019 (2016Du513 judgment, hereinafter referred to as the “target judgment”) presented the criteria for determining the type of income of the withdrawing member under the tax law. We studied the criteria for identifying the types of income received by withdrawal union members and critically examined whether the tax office’s change of the grounds for disposition in relation to the taxation disposition that was the premise of the target judgment should be considered as unacceptable because it violates the binding power of the final judgment, as judged by the target judgment.