원고가 회수한 금액이 원금에 미달하고 그 일부를 회수할 없음이 객관적으로 명백하므로 이자소득은 없는 것임[일부국패]
Seoul Administrative Court 2015Guhap1080 ( October 14, 2016)
Since the amount recovered by the plaintiff is less than the principal and it is objectively apparent that part of it is not recovered, there is no interest income.
A claim arising as a result of settlement of accounts is that the principal and interest accrued until 2009 have been settled in full with an independent bond separate from the existing loan bonds. It is objectively evident that a loan claim in 2010 had not already been recovered at the time of the instant disposition, and that the amount actually recovered falls short of the principal, deeming that there was no total amount of interest income in 2010
Article 51 (Calculation of Gross Income Amount)
2016Nu46252 global income and revocation of disposition
- Appellants
LAA
YThe director of the tax office
Seoul Administrative Court Decision 2015Guhap1080 decided April 14, 2016
September 27, 2016
October 18, 2016
1. All appeals filed by the plaintiff and the defendant are dismissed.
2. The costs of appeal shall be borne by each party.
1. Purport of claim
The Defendant’s imposition of the global income tax for the year 2007 against the Plaintiff on May 22, 2013, the imposition of the global income tax for the Plaintiff on July 1, 2013, the imposition of the global income tax for the year 2008, the global income tax for the Plaintiff on July 1, 2013, the global income tax for the year 2009, and the global income tax for the year 2010, respectively, is revoked.
2. Purport of appeal
A. The plaintiff
The judgment of the court of first instance that ruled against the Plaintiff as falling under the following shall be revoked. Each disposition of imposition of the part of the global income tax for the Defendant against the Plaintiff on July 1, 2013, among the disposition of imposition of global income tax for the year 2008, global income tax for the year 2009, and global income tax for the year 2010, shall be revoked.
B. Defendant
The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding thereto shall be dismissed.
section 3.
1. Scope of the judgment of this court;
In the first instance court on May 22, 2013, the Plaintiff sought revocation of the imposition of the global income tax for the year 2007 imposed by the Defendant on the Plaintiff, and on July 1, 2013, the Plaintiff sought revocation of the imposition of the global income tax for the year 2008, the global income tax for the year 2009, the global income tax for the global income tax for the year 2009, and the global income tax for the year 2010. The first instance court dismissed the claim for revocation of the imposition of the global income tax for the year 2007, and dismissed the remainder of the claim.
The defendant appealed against the whole part against the defendant, but the plaintiff appealed only to the part against the plaintiff except the part of the claim for revocation of the disposition of imposition of the global income tax for the year 2007, and thus, the part of the claim for revocation of the disposition of imposition of the global income tax for the year 2007 shall be excluded from the scope of the judgment of this court.
2. Quotation of judgment of the first instance;
The reasoning for the court’s explanation on this case is as stated in the corresponding part of the judgment of the court of first instance, except for dismissal, addition, or deletion of the judgment of the court of first instance as follows. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
○ List from No. 2 to No. 3 of the first instance judgment is as follows:
○ Once the first instance court's decision No. 4, the following shall be added to the 5th class "OOO(1)", and the following shall be added to each class:
○ Removal from No. 5 to No. 4 below on the fourth decision of the first instance court
○ On Part 5 of the first instance judgment, the following is added to the fifth instance judgment:
[Ground of Recognition] Facts without dispute, Gap evidence 1-2 through 3, Gap evidence 5, Eul evidence 1-2 through 5, 9, 10, 12, 13-1 through 4, Eul evidence 1-2, 3, Eul evidence 4-1, 2, Eul evidence 5, Eul evidence 8-1 and Eul evidence 8-2, and the purport of the whole pleadings
○ On No. 7, No. 9 of the first instance court’s judgment, “No. 9 of the first instance court’s judgment,” and “No. 2, 3 of the following additional documents:
○ The following shall be added to the Decision of the first instance court No. 10th 16th Reference."
The so-called substitution, which performs an existing obligation by providing a new loan only formally without receiving funds, constitutes a separate loan, except in extenuating circumstances. However, the legal nature of the existing loan is merely the extension of the payment period of the existing loan. However, it is reasonable to deem that the existing loan and new loan are a quasi-loan for consumption where there are circumstances, such as the purpose of the existing loan and its new loan are different, the loan principal, interest rate, and interest rate on delay rate, and the change of part of the existing loan into the principal of the new loan. It is reasonable to deem that the repayment of the existing loan and the contract establishing a new loan constitutes a novation with no identity between the two obligations (see Supreme Court Decision 201Da7445, Oct. 11, 202).
○ From 10 pages 17 to 11 of the judgment of the first instance court is as follows.
(2) From June 21, 2007 to May 30, 2008, the Plaintiff loaned money to D 2, 4, 5, and 6 on a yearly basis as indicated in the instant Table and repaid part of the interest from D D in reality. The rate of the leased principal and the agreed rate of the OO expense between D D and D d on August 14, 2008 shall be set at O.O.O.% per annum. The Plaintiff settled that the loan principal and interest of D 2, 4, 5, and 6 on a yearly basis, additionally paid KRW 00,000,000,000,000,000,000,000, included in the leased principal and interest (as a result, the above O.O.) were included in the above principal and interest settlement rate of KRW 70,000,000,000,000,000,000,000.
Examining the above facts in light of the legal principles as seen earlier, the Plaintiff: (a) was actually reimbursed part of the principal and agreement of the loan between D and the loan in a way that they are included in the new principal; (b) was exempted from interest on the loan principal under an agreement with DD; (c) the new rate was different from that of the loan; (d) the Plaintiff was included in the existing principal of the loan; and (e) settled that the existing obligation was fully discharged or discharged from the loan; and (e) loans stated in Section 1, 3, and 8 were repaid on a yearly basis among the loan bonds against D and D, No. 1, 7, and 9, 7, 9, 7, 9, 7, 7, 7, 7, 9, 7, 7, 9, 7, 9, 9, 7, 7, 9, 9, 7, 9, 7, 9, 9, 7, 9, 9, 9, 9, 1, 1, 7, 7, 7, 9, 1, 7, 7, ., ., ., ., ., .
○ The first instance court's first instance court's first instance court's first instance court's second first instance court's first instance court's second first instance court's second first instance court's second to
Ultimately, among the Plaintiff’s interest income in 2010, there is no interest income from the loan claims as stated in paragraph (11) of the instant table (the total amount of income accrued in 2010 of the Plaintiff is an OO won and the interest income accrued therefrom is an OO won. Among them, the remaining OO members, excluding the parties to the loan claims as stated in paragraph (11) of the instant table, who were extinguished on April 7, 2010 in the settlement of accounts, belong to interest income for 2010 years in the instant table, and thus, it is recognized as interest income for the year 2010).
3. Conclusion
If so, the judgment of the first instance court is legitimate, and the appeal by the plaintiff and defendant is groundless, and all of them are dismissed.
each subparagraph.