[종합소득세부과처분취소][공1988.11.1.(835),1340]
If it is impossible to recover the cause claim even after the securities are disposed of, whether interest income which is subject to income tax has accrued.
In order to determine that interest income which is subject to income tax has been realized, the creditor is not required to receive the interest in reality, but is considerably mature so as to be able to receive it. If it is evident that the disposition of a security does not fall short of recovering the principal claim, unless there are other special circumstances, it shall be deemed that the creditor has not become able to receive the principal claim in reality at that time, unless there are other special circumstances.
Article 28 of the Income Tax Act
Supreme Court Decision 79Nu441 delivered on February 10, 1981, 85Nu26 delivered on June 11, 1985, 87Nu166 delivered on June 23, 1987
[Judgment of the court below] The plaintiff 1 et al.
Head of Namgu Tax Office
Daegu High Court Decision 84Gu247 delivered on December 27, 1985
The case shall be remanded to the Daegu High Court by destroying the part of the judgment of the court below against the plaintiff.
1. As to ground of appeal No. 1
If we review the reasoning of the judgment below in comparison with records, we affirm the process of recognizing the fact that the plaintiff received the funds from the debtor by the timely evidence, and there is no violation of the rules of evidence or incomplete hearing such as the theory of lawsuit.
2. As to ground of appeal No. 2
(1) The court below acknowledged the loan amount of KRW 136,00,000 to the 17th day of the same month on 1979.12. The loan amount of KRW 10,000 to the 17th day of the same month is 50,000,000 which is 136,000 won per month after deducting 11,095,000 won from the 28th day of the same month. The interest amount of KRW 136,00,000 is 136,000,000,000 won is 136,00,000 won per month from the 10,000,000 won per annum to the 106,000,000 won per annum of the above real estate was 10,000,000 won per month from the above 30,000 won per annum or 106,000 won per annum of the above interest.
However, in order to find that interest income is subject to income tax, the plaintiff should not be required to receive the interest in reality, but it should be mature enough to receive it, as recognized by the court below. If the principal leased to the non-party 2 is 380,000,000 won, the market price of the real estate that received the registration of transfer of ownership as security is 39,000 won, and it is evident that if the amount of subrogation for the senior creditor claimed by the plaintiff is 218,000,000 won or more, it is not possible to recover the principal claim even if the security was disposed of. Thus, barring any other special circumstances, it would be reasonable that the plaintiff's interest claim that was not actually paid from the non-party 2 was not mature at that time (see Supreme Court Decision 85Nu26, Jun. 11, 1985; Supreme Court Decision 87Nu166, Jun. 23, 1987).
Therefore, the part of the judgment below which dismissed the plaintiff's claim is not illegal because the defendant's taxation disposition that calculated the interest amount that the plaintiff did not actually receive from the non-party 2 was justified, and it is reasonable to point out this point.
Therefore, the part of the judgment below against the plaintiff shall be reversed, and that part shall be remanded to the court below for a new trial. It is so decided as per Disposition by the assent of all participating judges.
Justices Yoon Young-young (Presiding Justice)