2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The disposition of imposition of global income tax of KRW 000,000, which the Defendant rendered to the Plaintiff on January 17, 2014, shall be revoked.

A. The defendant, on June 13, 2007, lent 000 won (hereinafter referred to as "AA") to AAA Co., Ltd. (hereinafter referred to as "AA"), and on April 20, 209, on the real estate listed in attached Form 1 (hereinafter referred to as "BBBBB") owned by the plaintiff BBBB (hereinafter referred to as "the real estate in this case") in attached Form 1 (hereinafter referred to as "BB") owned by the plaintiff on April 22, 2007, after 00 won was leased to the plaintiff on June 13, 200, 2000, 000 U.S. registry office of O283 (hereinafter referred to as "the provisional registration in this case"), the plaintiff acquired the real estate in this case as payment for the loan in lots of 00 won and 100.7% of interest income accrued to the plaintiff on June 22, 200, 2000 won after deducting the amount of the loan in this case 9 1000.0 billion won.

B. The Plaintiff filed an appeal with the Tax Tribunal on June 12, 2014, but the said appeal was dismissed on November 7, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. The parties' assertion

A. The defendant's assertion

According to the agreement between the plaintiff and the AAAA on June 13, 2007 and the loan amount agreement (Evidence 3), "if the AAAA provides that "if the loan of this case is not fully repaid within the deadline for full payment, it shall belong to the plaintiff without any condition." The representative director of the AAA states that "AAA shall belong to the plaintiff at the time of the defendant's investigation, the defendant shall be the remainder after subtracting the senior credit amount from the value of the real estate of this case." After the plaintiff completed the registration of ownership transfer concerning the real estate of this case, the registration of this case was made in accord and satisfaction with the loan of this case, and the defendant's disposition of this case is legitimate.

B. The plaintiff's assertion

The Plaintiff was merely holding the instant real estate as collateral for the instant loan, and the Plaintiff transferred the instant real estate to AAAA after final settlement between AAAA and the final settlement was completed on May 26, 2013. The instant registration, even legally, has the nature of a transfer by means of transfer, which is a weak meaning of having a duty to liquidate. Thus, the instant disposition based on the premise that the instant principal registration is a accord and satisfaction, is unlawful, and even if it is a accord and satisfaction, the Plaintiff’s expenses, etc. incurred during that period, should be recognized as necessary expenses.

In addition, as long as the principal registration of this case has a weak meaning of transfer for security, the time when the Plaintiff acquired the real estate of this case shall be deemed to be around December 2011 when AAAB notified the BBB of the completion of liquidation. Thus, the disposition of this case as of April 20, 2009 when the principal registration of this case was made is unlawful in this respect.

3. Relevant statutes;

Attached Form 2 is as shown in the relevant statutes.

4. Whether the instant disposition is lawful

(a) Facts of recognition;

1) Reasons for the provisional registration of this case and the principal registration of this case

A) On March 2, 2005, BBB entered into a contract with AAA on the construction work with the OO-dong O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O of the new construction work for the elevator parking equipment and elevator two installation works (hereinafter "the construction work in this case"), but on October 20, 206, BBBB entered into a modified contract with the AA to increase the construction cost of KRW 00,000 with respect to the payment of the construction cost excluding value-added tax, and entered into a provisional registration or a provisional agreement with the AAAA-A-A-O-O-O-O-O-O to provide security at the time of completion and pay KRW 00,000 for the construction work."

B) Since then, as BBBB failed to pay AAB KRW 000 to November 30, 2006, BBB made a proposal that it would make a provisional registration with respect to the real estate of this case, which was provided as security for construction cost by the terms of the above special agreement, and that it would make use of a portion of the funds, since it would make a provisional registration with respect to the real estate of this case, which was provided as security for construction cost by the said special agreement, and that at the time, AAAAAAA, which was already borrowed KRW 000 from the Plaintiff, was written on June 13, 2007 between the Plaintiff and the Plaintiff.

(1) An agreement on the confirmation of the amount of loan and the amount of loan on June 13, 2007 (hereinafter referred to as the "Agreement on June 13, 2007").

1.In the agreement of both parties on the principal and interest in arrears borrowed not later than the due date, all claims and obligations shall be settled on 000 won.

<원금: 000만 원 + 000만 원 + 000만 원 + 000만 원 + 000만 원 = 원금 0000만 원 + 이자 ⇒ 계0000만 원>

2.Odong 1 is to provide provisional registration 1 and DD 2001 with provisional registration as security and to provide additional 0 million won, and to fully pay 6 months or less including interest in arrears of 6% per annum for the total amount of 0 million won by the date of full payment.

3. DDR 2001 provides for provisional registration as above as security will revert to EE without any condition if the borrower is unable to fully repay the amount within the due date.

C) On the other hand, upon completion of the provisional registration of this case on June 22, 2007, the Plaintiff paid KRW 000 to BBBB between the Plaintiff and BBBB on June 21, 2007, which was attached to the registration certificate (Evidence 6) received from OO District Court OOB registry, and upon completion of the provisional registration of this case on June 22, 2007, the Plaintiff paid KRW 000 to BBB between the Plaintiff and BBB, and BBBB shall implement the provisional registration procedure of the right to claim ownership transfer on the instant real estate upon completion of this reservation. The Plaintiff and BBBBBB’s seal affixed to each of the signature of the Plaintiff and BBBBBBB.

D) After that, on October 19, 2007, the Plaintiff filed a lawsuit against BBB on the claim for the implementation of the principal registration of this case based on the provisional registration of this case, and completed the registration of this case on April 20, 2009 after receiving a favorable judgment (2007da158334, the judgment was made by service by public notice, and it became final and conclusive on December 2, 2008) from the O District Court on November 7, 2008.

2) Action against the Plaintiff of BBB and AABAB

A) BBB on April 24, 2008, filed a lawsuit against the Plaintiff and ABB on April 24, 2008 with the District Court 2008da7386, and filed a claim against the Plaintiff for cancellation of the provisional registration and the principal registration of this case against the Plaintiff on the ground that the Plaintiff completed the provisional registration and the principal registration of this case. ABB filed a counterclaim against BB on the ground that the judgment of the court of final appeal against BB on September 16, 2009 [the court of final appeal 3208da7386 (principal claim), 209da2401 (Counterclaim)] and the court of final judgment against BB on September 16, 209 'BBB' was dismissed by the first instance court of final judgment against the Plaintiff 1 and the first instance court of final judgment against BBB on the 201st day of 200da209.

B) After December 8, 2010, BBBB filed a lawsuit seeking confirmation against BBB on the ground that CBBB had no interest with BBBB in the provisional registration of this case. However, if BBBB obtained a decision by service and received a provisional registration of this case on the basis of the provisional registration of this case, the provisional registration of this case is null and void, and even if BBBB had no obligation to pay BBBB to ABA as security, the provisional registration of this case and the provisional registration of this case should be revoked entirely because BBBBB had no obligation to pay to BBBA as security, and as the ownership of the real estate was claimed to BBBB in the lawsuit for the plaintiff, AAAA, which participated in the lawsuit, was notified of the settlement of the principal and interest of the real estate during the lawsuit of this case to BBBB, and the liquidation procedure of this case cannot be deemed to have been completed on December 12, 2011.

C) On February 22, 2012, the UO district court rendered a judgment dismissing BBBB’s claim on the ground that “The provisional registration of this case was completed to secure the claim for the construction cost of this case, and the principal registration of this case was completed by a favorable final and conclusive judgment. The provisional registration of this case and the principal registration of this case shall be deemed as a transfer for security in the so-called meaning, which is scheduled to settle as being completed to secure the claim for the construction cost of this case. The claim for the construction cost of this case under the first judgment of this case exists at the time of the notice of completion of the liquidation of this case and the amount of the claim would exceed the appraised value of the real estate of this case.” The above judgment was finalized on October 17, 2013 through the appellate court (OO district court 2012Na6926) and the final and conclusive appeal (Supreme Court Decision 2013Da52653) and the final and conclusive appeal (Supreme Court).

3) Settlement agreement between the Plaintiff and the AAAA, etc.

A) On May 26, 2013, the Plaintiff entered into an settlement agreement with AA as follows with respect to the instant loan (hereinafter “instant settlement agreement”). The loans so settled include 000 won including acquisition tax, registration tax, property tax, etc. paid by the Plaintiff during the period in which the Plaintiff owned the ownership of the instant real estate in the future.

(C) A loan settlement agreement (final evidence No. 4; hereinafter referred to as the "Agreement on May 26, 2013")

1. (Fictitious) The total amount of the principal of the loan is 000 won;

2.As above, the agreement on the settlement of loans is reached, and "OOOO 00 DDDD 2001" is the refund of the building for the above security purpose, and the settlement agreement is reached in 000 won per principal.

B) On June 3, 2013, the Plaintiff completed the registration of ownership transfer on the ground that the transaction value of the instant real estate was KRW 000 with respect to the instant real estate sold to AAA, and on July 5, 2013, AAA paid KRW 000 to the Plaintiff.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 3, 4, 5, 7, 10, Eul evidence Nos. 3, 5 through 9, and the purport of the whole pleadings

B. Determination

1) Claim secured on the provisional registration of this case

In light of the above facts, it is reasonable to view BBBBBB as the provisional registration of this case to be the provisional registration of this case, and the provisional registration of this case was made by the 3BBBBB BB BA, and the 3BBBB BB BB had not been paid 000 won until November 30, 206. At the time of borrowing 000 won from the 3BA, the provisional registration of this case was made in the name of the 9BBB BB BBB, which is not the provisional registration of this case, and the provisional registration of this case was made in the name of the 9BBB BB BBB, which is not the provisional registration of this case, but the provisional registration of this case was made in the name of the 9BBBB BB B B B B, which is not the provisional registration of this case, but the provisional registration of this case was made in the name of the 9BBBB BA.

2) Legal evaluation of the principal registration of this case

이 사건 가등기가 이 사건 대여금에 대한 담보 목적으로 마쳐진 사실은 앞서 본바와 같으므로, 가등기담보 등에 관한 법률의 적용을 받는바, 원고가 이 사건 가등기를 실행하여 이 사건 부동산의 소유권을 취득하기 위해서는 가등기담보에 관한 법률 제3조, 제4조에서 정한 절차{그 채권의 변제기 후에 청산통지 당시의 이 사건 부동산 가액에서 선순위담보된 채권액 등 그 채권액을 뺀 금액(이하 '청산금'이라 한다)을 같은 법 제2조 제2호 ㈏목에 해당하는 물상보증인인 BBBBBBB에게 통지하고, 그 통지가 도달한 날부터 2개월(이하 '청산기간'이라 한다)이 지난 후 청산금을 지급하여야 함}를 준수하여야 할 것인데, 이와 같은 절차를 거치지 않고 마쳐진 그 본등기는 무효라고 할 것이고, 설령 그와 같은 본등기가 가등기권리자와 채무자 사이에 이루어진 특약에 의하여 이루어졌다고 할지라도 만일 그 특약이 채무자에게 불리한 것으로서 무효라고 한다면 그 본등기는 여전히 무효일 뿐, 이른바 약한 의미의 양도담보로서 담보의 목적 내에서는 유효하다고 할 것이 아니다(대법원 2002. 12. 10. 선고 2002다42001 판결 등 참조).

However, the plaintiff did not follow the above procedure and stated that the loan agreement (No. 6) signed on June 13, 2007 between the plaintiff and the AAA, which was made on June 20, 207, did not provide for the settlement of accounts devolving upon the above agreement (Evidence No. 3). The following circumstances, which are acknowledged as comprehensively taking account of the evidence mentioned above, Gap evidence No. 6, Eul evidence No. 3, and evidence No. 4, and the overall purport of pleadings, i.e., the "CCC, the representative director of the AAA," did not pay the loan of this case, and the amount remaining after deducting the senior claim amount from the value of the real estate of this case, was reverted to the plaintiff. < Amended by Presidential Decree No. 20650, Jun. 20, 2007; Presidential Decree No. 2000, Mar. 6, 2006>

Furthermore, although BBBB has the right to file a claim for cancellation of ownership transfer registration completed for the purpose of collateral security until it receives liquidation money pursuant to Article 11 of the Provisional Registration Security Act, BBBBB had the right to file a claim for cancellation of ownership transfer registration completed for the purpose of collateral security. However, although BBBBBB had already filed a lawsuit against the Plaintiff based on ownership, the above lawsuit was finalized, as seen earlier, the right to claim cancellation registration of ownership transfer registration pursuant to Article 11 of the Provisional Registration Security, etc. of BBBB is merely an independent attack and defense that supports the invalidity of ownership transfer registration, and thus conflict with the res judicata effect of the above final judgment (the subject matter of the claim for cancellation registration is the right to claim cancellation registration, and the cause of the claim for cancellation registration is the invalidation of the relevant registration, and each of the grounds supporting the invalidity of the cause for registration is merely an independent defense method, and thus, in the previous lawsuit, the grounds alleged by the Plaintiff cannot be seen as the same cause as that of the previous lawsuit and the subsequent lawsuit cannot be seen as the grounds for nullification of res judicata 10 of the final judgment.

Thus, although the principal registration of this case is null and void under the private law, BBBB, the owner of this case, is no longer able to assert the invalidity of the principal registration of this case, and the real estate of this case actually belonged to the plaintiff.

3) Whether interest income pursuant to the principal registration of this case accrue and the time of attribution

On the following grounds, the Defendant’s appraisal value of the instant real estate at the time of the instant principal registration was determined as interest income equivalent to KRW 000,000 remaining after subtracting the amount of senior claim amount from KRW 000,000 at the time of the instant principal registration, which falls under “profit from a non-business loan” under Article 16(1)11 of the former Income Tax Act, and it is lawful to view that the agreement of June 13, 2007, calculated pursuant to the rate of 6% per annum of the agreement of June 13, 2007, was reverted to the Plaintiff in 2009, and thus, the prior Plaintiff’s assertion is rejected on a different premise.

① In light of the economic aspect of taxable income, taxable income is deemed to have a tax-bearing capacity when it controls and manages income in reality, it shall be sufficient to deem that there is such a tax-bearing capacity, and legal assessment of the causal relation to which such income was derived shall not be deemed to have been lawful and effective (see, e.g., Supreme Court Decision 81Nu136, Oct. 25, 1983). In our Income Tax Act, in interest income, business income, dividend income, wage and salary income, etc., the requirements for taxation of income are determined depending on whether the independent taxation requirements prescribed by the tax-related Act have been met. However, the reason why only the interest income is subject to a direct determination of the judicial effect of the acquisition act is not found. After the establishment of the application for correction, the imposition of interest income tax may be exempted from the beginning on the ground that the parties have recovered the property before on the grounds of invalidation or revocation of the acquisition act after the establishment of the application for correction.

② The Plaintiff occupied and managed the instant real estate exclusively from the completion of the instant principal registration on April 20, 2009 to AAA for a period of more than four years from July 5, 2013, where the ownership was transferred to the Plaintiff, and thus, possession and management cannot be deemed as temporary. At any time, the Plaintiff could dispose of the instant real estate to a third party acting in good faith and acquire the proceeds of disposal (the said third party shall acquire the ownership of the instant real estate as effective pursuant to the proviso of Article 11 of the Provisional Registration Security Act). In particular, in the instant case, BBB cannot invalidate the instant principal registration any longer due to a final and conclusive judgment against the Plaintiff.

③ Therefore, it is reasonable to view that the Plaintiff acquired interest that the Plaintiff would have received from AAA as it actually reverted to the Plaintiff when the Plaintiff completed the principal registration of this case.

④ Meanwhile, the Plaintiff’s instant settlement agreement with AAA and transfer of ownership of the instant real estate by such agreement is merely a separate transaction after the requirement for taxation of interest income is determined, and the interest income under the Income Tax Act is not recognized as necessary expenses.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.