[종합소득세부과처분취소][집33(2)특,246;공1985.8.1.(757),1017]
(a) When it is deemed that income subject to income tax has occurred, and matters to be considered in determining such income;
(b) Methods of calculating interest income, in cases of payment in kind of principal and interest on a loan;
A. In order to ensure that income subject to income tax has been realized, it is not required until the income has been realized, and at least the right to generate income is considerably mature, final and conclusive due to the possibility of realizing it, so it is sufficient that the right to generate income has been established. Thus, it cannot be deemed that there has been income as subject of income tax, and it is reasonable to determine it by comprehensively taking into account the specific nature of individual rights, legal and practical matters, as it is not always possible to say uniformly that the right to generate income can have been mature and finalized.
B. In a case where there is a payment in kind for the principal and interest of a loan, if the value of the property received in kind exceeds the principal and interest up to that time, there is no problem of calculating the interest income by multiplying the interest rate according to the period when the value of the property received in kind exceeds that of the principal and interest, and if the value falls short of the aggregate amount of principal and interest, it is reasonable to deem that the interest income remains after deducting the amount equivalent to
(a) Article 28 of the Income Tax Act;
Supreme Court Decision 79Nu296 delivered on April 22, 1980, Decision 79Nu441 delivered on February 10, 1981
Plaintiff 1 and one other
Head of Central Tax Office
Daegu High Court Decision 84Gu237 delivered on December 14, 1984
The judgment below is reversed, and the case is remanded to the Daegu High Court.
The grounds of appeal are examined.
1. In its reasoning, the court below decided that the plaintiffs' interest income from the above 1, 2, 3, 2, and 5, 6, and 7 on April 2, 1982 were 180,000 won (the plaintiff 1 shall be 30,000,000 won, and the plaintiff 2 shall be 50,000 won) with interest rate of 20% per month on the above 20-year interest income from the above 20-year interest income from the above 1,000 and the above 20-year interest income from the above 9-year interest income from the above 20-year interest income from the above 20-year interest income from the above 10-year interest income from the above 20-year interest income from the above 19-year interest income from the above 20-year interest income from the above 1,000 won and the above 20-year interest income from the above 20-year interest income from the above 1, and the above 20-year interest income from the above 20.
2. In order to find that income subject to an excessive income tax has been realized, it is not required until the income has been realized, and at least the right to generate income has become final and conclusive at a considerably high level because it is possible to realize it, so the right to generate income has not yet been established, and it is reasonable to determine it by comprehensively taking into account the specific nature, substance, law, and various facts of individual rights, as it cannot be uniformly said that the right to generate income has become final and conclusive with a certain fact (see, e.g., Supreme Court Decisions 79Nu296, Apr. 22, 1980; 79Nu441, Feb. 10, 1981).
According to the records, there is no dispute between the parties that the agreement was not made in reality with respect to the lending and borrowing of the money, and only the fact that there was an agreement between the parties that the interest and the repayment period were reached, and the interest claim cannot be deemed to have been confirmed because the maturity period had arrived. This is because, in private financing, there is no interest payment cannot be said in the loan for consumption, and the case that the repayment of the principal is not made at the time, and the case that the repayment of the principal is not made at the time is weak, it can be said that the litigation situation is fluent in accordance with our rule of experience.
In addition, as seen in the judgment of the court below, if the secured real estate of the above lending was paid in kind to the creditors including the plaintiffs, this shall be deemed to have been repaid regardless of the amount of the principal and interest of the above lending. Thus, there is no need to say that there is no problem of satisfaction of payment under the Civil Act. Therefore, in order to calculate the interest income in the case of payment in kind for the principal and interest of the lending, there is no problem that the interest income should be calculated by multiplying the interest rate by the period when the value of the property received in kind exceeds the principal and interest up to the time, and if the value is less than the sum of the principal and interest, it is reasonable to view that the interest income exists if there is any balance after deducting the amount equivalent to the principal and interest amount (the deduction if the refund cost
Therefore, if 192,00,000 won from the sale price of the above real estate is reasonable, the interest income shall be deemed to have been finally fixed within the range of 12,00,000 won after deducting the principal from the payment in lieu of the above principal when the payment in substitution is made.
Although the judgment of the court below, it cannot be said that there was an unlawful act of misunderstanding the legal principles on income generation and the legal principles on satisfaction of obligation, which have been judged that interest income has been paid, until the expiration of the interest claim until the time when the secured real estate was paid when the secured real estate was paid in substitution (such as sale at once, because the sale at other is the same time, the same as the sale at other is the same time). Thus, the theory on this issue is justified, and therefore, it cannot be reversed.
Therefore, the judgment of the court below is reversed and remanded, and it is so decided as per Disposition with the assent of all Justices involved.
Justices Lee Chang-chul (Presiding Justice)