[2] Whether the agreement that was received after the maturity period for a loan for consumption with interest constitutes other income under the Income Tax Act (affirmative in principle)

1. As to the Defendant’s ground of appeal

A. The record reveals the following facts.

1) 원고가 근저당권의 피담보채무를 모두 변제하였다고 주장하면서 근저당권자인 피고를 상대로 그 근저당권설정등기의 말소를 구하는 이 사건에서, 원고는 원심 제1회 변론기일에서 진술된 2013. 1. 17.자 준비서면을 통하여, ‘피고의 주장과 같이 원고와 피고 사이에 변제충당에 관한 합의가 없어 비용, 이자, 원금의 순서로 변제충당을 하였다고 인정한다면, 피고가 인정하는 이자의 합계 562,533,181원은 원고가 피고에게 이미 지급한 것이므로 원고는 피고의 비영업대금 이익에 대하여 소득세법 제14조 제3항 및 제85조 제3항 에 의하여 소득지급자(원천징수의무자)로서 종합소득세 140,633,295원, 주민세 14,063,330원을 징수하여 납부하여야 합니다. 따라서 설령 원고에게 피고에 대한 채무가 존재한다고 하더라도 원고가 피고로부터 원천징수해야 할 금액은 공제되어야 할 것입니다.’라고 주장하였다.

2) With respect to the interest accrued until the due date under the Income Tax Act, where the interest is subject to withholding, if the remainder after deducting the withholding tax is paid, it shall be valid as repayment, and the said interest constitutes interest income which is a non-business loan subject to withholding tax, and thus, the Plaintiff, Non-Party 1, and 2 (hereinafter “Plaintiff, etc.”) should pay as interest the remainder after deducting his income tax and resident tax. Therefore, the amount paid by the Plaintiff, etc. to the Defendant is first appropriated for payment from the interest accrued until the due date of the payment of the corresponding amount after deducting the said withholding tax, and the remaining amount was calculated as repayment of the principal, and then the amount remaining as repayment by the Plaintiff, etc. was calculated as repayment of the principal.

B. However, we cannot accept the judgment of the court below for the following reasons.

1) The purport of the Plaintiff’s assertion in the above preparatory document is that the amount equivalent to KRW 140,63,295 of global income tax on the interest paid by the Plaintiff and KRW 14,063,330 of resident tax should be collected and paid from the Defendant. As such, the amount equivalent to the above amount should be deducted from the remaining amount of secured debt. Since the Plaintiff withheld the amount equivalent to the tax on the interest at the time of the previous repayment, it should be the amount repaid by the Plaintiff on the premise that the Plaintiff should be paid to the interest and principal, or even if the Plaintiff did not withhold the amount equivalent to the tax on the interest at the time of the previous repayment, if he claims the deduction equivalent to the amount of the tax on the interest at the time of the payment of the interest, the same effect as the withholding at the time of the payment of the interest should be derived. Thus, the lower court should have deliberated and decided first whether the Plaintiff has the right to collect or claim

Nevertheless, the lower court determined that, on the basis of matters not asserted by the Plaintiff, the Plaintiff should pay the principal, instead of interest, the amount to be withheld at each time retroactively from the time when the Plaintiff paid the actual interest.

2) In addition, according to the records, the plaintiff et al., borrowed 1 billion won from the defendant as of January 26, 2007 and agreed to pay interest 1.5% per month and interest per month, and the plaintiff et al. paid the defendant periodically a monthly interest of KRW 15 million or interest of KRW 30 million per month. If the plaintiff et al. were to pay the above interest, the plaintiff et al., without deducting the withholding tax at the time of the payment of each of the above interest, shall pay the full amount of the interest, and it is difficult to view that the plaintiff et al. paid only the remainder after deducting the withholding tax at the time of the payment from the interest and partly repaid the principal for which the payment has not yet arrived even if the plaintiff et al. asserted the deduction of the withholding tax at the time of payment after the deduction of the withholding tax at the time of payment, it cannot be deemed that the validity of the repayment already occurred

3) Ultimately, the lower court erred by either violating the disposition authority principle, or by misapprehending the legal doctrine on the effect of repayment or repayment of obligation, thereby adversely affecting the conclusion of the judgment.

2. Plaintiff’s ground of appeal

A. The compensation for delay resulting from the delay of payment of obligation does not mean the damage to the payment itself, which is the content of the original contract, and it does not mean that the obligation is the monetary liability. Thus, the compensation for delay arising from the delay of the monetary obligation constitutes other income as “the penalty and compensation received due to the breach or termination of the contract” under Article 21(1)10 of the Income Tax Act, and thus, barring special circumstances such as where the payment period has been extended implicitly even after the expiration of the payment period for the loan for consumption with interest, the money pursuant to the rate of the agreement that was paid thereafter constitutes other income (see Supreme Court Decision 95Nu7406 delivered on March 28, 1997).

According to the reasoning of the judgment below, the court below rejected the Plaintiff’s assertion of withholding tax deduction on the premise that the damages for delay pursuant to the agreed interest rate that the Plaintiff, etc. paid to the Defendant after the due date did not constitute interest income.

In light of the aforementioned legal principles and records, such judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles or failing to exhaust all necessary deliberations

B. Meanwhile, the allegation in the grounds of appeal that the loan contract for consumption between the Plaintiff, etc. and the Defendant was implicitly renewed until January 28, 2010 is only the first claim in the final appeal, and thus, it cannot be a legitimate ground of appeal.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)