[종합소득세부과처분취소][집33(2)특,369;공1985.9.15.(760),1211]
A. In a case where it is deemed that interest income has occurred, and whether the interest income has been renounced and deducted
B. Whether the unpaid excess falls under the “amount imported” under Article 28(1) of the Income Tax Act (negative)
A. In general, a claim for interest on a loan for consumption and a claim for damages under a loan for consumption and a provisional registration is established for securing the loan and can be repaid with the principal and interest on the loan due to the realization of the security right, if the due date arrives, it constitutes an income subject to taxation on the ground that even if the due date arrives, it constitutes an "amount to be imported" under Article 28 (1) of the Income Tax Act, and even if the creditor renounces the interest claim that occurred thereafter, it cannot be a ground for deduction from the taxable object because it is the waiver of the claim that has already been finalized under the Income Tax Act.
B. Interest and damages exceeding the interest rate prescribed in the Interest Limitation Act are null and void because the contract itself, which forms the basis of which the contract itself, becomes null and void, there is no room for claims for interest and damages, but it cannot be said that there is no possibility of importation reality since the obligee’s voluntary payment cannot be expected. Therefore, the interest and damages for excess amount constitute income subject to taxation when the contract was actually paid, but it does not constitute “amount to be imported” under Article 28(1) of the Income Tax Act as long as the contract was not yet paid even if the due date arrives.
(a)Article 28 of the Income Tax Act;
A. Supreme Court Decision 83Nu577 delivered on April 24, 1984; 84Nu303 Delivered on December 11, 1984
[Judgment of the court below]
Director of the tax office
Seoul High Court Decision 84Gu273 delivered on March 26, 1985
The appeal is dismissed.
The costs of appeal shall be borne by each of the plaintiff and the defendant.
(1) We examine the grounds of appeal by the Plaintiff’s attorney.
Since the Income Tax Act adopts the principle of confirmation of right as to the time when income is confirmed, in general, in the event that a provisional registration for security has been established, and a repayment of the principal and interest on a loan is possible due to the realization of the security right, if the due date arrives, the income subject to taxation is in the state of attempted crimes, and even if the creditor renounces the above interest claim after the death, it does not constitute a reason to be deducted from the income subject to taxation because it is the waiver of the claim established under the Income Tax Act.
According to the reasoning of the judgment below as to this case, the plaintiff extended 40,000,00 won to the non-party 1 on September 7, 1979 at an interest rate of 4% per month. The plaintiff received interest rate of 27,200,000 won per month for every 17 months until February 6, 1981. The above non-party 1's provisional registration of 27,200,000 won was made on the above non-party 1's 2,760 above for the purpose of securing the above loan, and if the above loan is not repaid, it was obtained from all documents necessary for compromise based on the above provisional registration by the creditor to complete the above provisional registration, and the non-party 1 did not have any other interest interest interest interest interest interest rate of 1,60,000,000 won after the above provisional registration was sold to the non-party 28,000,000 won per annum of the above provisional registration.
(2) We examine the grounds of appeal by Defendant Litigation Performers.
Since interest and damages in excess of the interest rate prescribed in the Interest Limitation Act are null and void in the contract itself, even if the agreed due date has arrived, there is no possibility of a claim for interest and damages, but it cannot be said that there is a possibility of realizing import since it is not possible to expect voluntary payment by the debtor. Therefore, the interest and damages in excess are actually paid, and even if the due date arrives, it does not constitute "amount to be imported" under Article 28 (1) of the Income Tax Act as long as it is not yet paid even if the due date of the contract arrives.
In the same purport, the court below is just in holding that interest damages exceeding the rate prescribed by the Interest Limitation Act among the interest claims held against the non-party 1 shall not be deemed income subject to taxation, and it shall not be deemed that there is an error of law such as incomplete hearing or misunderstanding of legal principles.
In addition, according to the records, the defendant's assertion that the plaintiff lent 20,000,000 won to the non-party 3 on March 17, 1980 at an interest rate of 4% per month and 800,000 won per month by the end of March 1982 is insufficient to accept it in light of the opposing evidence of the corresponding theory, and there is no other sufficient evidence to acknowledge it, and the rejection of it is just and there is no illegality of the theory of lawsuit. The argument is groundless.
(3) Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Jong-sik (Presiding Justice)
Justices Jeong Tae-sung is during the overseas business trip, and thus it is impossible to sign and seal it. Justice Kim Jong-sik