[종합소득세부과처분취소][공2001.1.15.(122),187]
[1] Whether Article 31 (3) of the former Income Tax Act violates Article 75 of the Constitution prohibiting comprehensive delegation legislation (negative)
[2] Whether Article 60 of the former Enforcement Decree of the Income Tax Act and Article 24 of the Enforcement Rule of the same Act limit the recoveryable claims subject to bad debts (affirmative)
[3] The sole evidence and the party's question
[1] Even if Article 31 (3) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) does not expressly specify the scope of matters delegated to the Presidential Decree concerning the calculation of necessary expenses, the meaning of the term "necessary expenses" itself and Article 31 (1) of the same Act shall be interpreted to include the principle of calculating real estate income, business income, other income, transfer income, or forest income only in the calculation of real estate income, business income, or necessary expenses, and also in the calculation thereof, the principle of calculating profits and losses during the period and the principle of responding to profits and expenses. In light of the fact that Article 31 (3) of the same Act (amended by Act No. 4803 of Dec. 22, 1994) is interpreted to mean that the expenses determined in the pertinent year are expenses corresponding to the income before the pertinent year, not expenses of the revenue reversion year, it can be predicted that the contents and scope of necessary expenses prescribed by the Presidential Decree, which is subordinate laws, are violated Article 75 of the Constitution prohibiting comprehensive delegation.
[2] Article 60 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) and Article 24 of the Enforcement Rule of the same Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995) shall be interpreted to the effect that Article 60 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31
[3] The party questioning is merely a supplementary method of evidence, and it cannot be recognized as a principal fact only by the result of the party questioning without any other evidence. Thus, the plaintiff's withdrawal from the court below for the reason that the plaintiff presented a new claim for the cancellation of a sales contract after remand and was made by applying for a witness to prove this fact, and then the plaintiff's request for an examination was not adopted, and the court did not adopt the only evidence for the party's assertion even if it did not adopt it.
[1] Article 31 (1) (see current Article 27 (1) and (2) (see current Article 27 (2)), and Article 27 (3) (see current Article 27 (3)), and Article 75 of the Constitution of the Republic of Korea / [2] Article 60 (see current Article 55) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of December 31, 1994), Article 24 (see current Article 25) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995) / [3] Articles 263 and 339 of the Civil Procedure Act, and Article 8 (2) of the Administrative Litigation Act
[1] Supreme Court Decision 91Nu814 delivered on July 14, 1992 (Gong1992, 2442), Supreme Court Decision 94Nu7980 delivered on September 30, 1994 (Gong1994Ha, 2896) / [2] Supreme Court Decision 95Nu18130 delivered on August 23, 1996 (Gong196Ha, 2910), Supreme Court Decision 98Du10509 delivered on October 27, 1998 (Gong198Ha, 2805) / [3] Supreme Court Decision 4289Sang452 delivered on November 11, 1956; Supreme Court Decision 6Da10608 delivered on September 6, 196; Supreme Court Decision 100Da181398 delivered on March 13, 198 (Gong19384).
Plaintiff (Attorney Kim Ba-young et al., Counsel for the plaintiff-appellant)
The director of Busan District Office
Supreme Court Decision 98Du10509 Delivered on October 27, 1998
Busan High Court Decision 98Nu3747 delivered on February 11, 1999
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
1. On the first ground for appeal
Article 31 (1) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994; hereinafter the same) provides that the amount to be included in necessary expenses shall be the total amount of expenses corresponding to the total amount of income in the year concerned in the calculation of real estate income, business income, other income, transfer income, or forest income. Paragraph (2) provides that the expenses corresponding to the total amount of income in the year concerned are determined as necessary expenses in the year concerned only if the expenses are not appropriated in the year concerned before the year concerned, and Paragraph (3) of the same Article provides that necessary expenses shall be determined by the Presidential Decree, even if the scope of matters delegated by the Presidential Decree concerning the calculation of necessary expenses is not explicitly specified, the meaning of the term "necessary expenses" itself and Paragraph (1) of the same Article of the former Income Tax Act provides that the calculation of necessary expenses shall be allowed only in the calculation of real estate income, business income, other income, transfer income, or forest income, and that the principle of profit and loss and countermeasure can not be interpreted as necessary for the year concerned.
2. On the second ground for appeal
According to the reasoning of the judgment below, it is reasonable to interpret Article 60 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) and Article 24 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance No. 505 of May 3, 1995) to the effect that the claim on a check or note, which has not yet been completed, is not an example of a bad debt, but a limited provision. Thus, the court below held that in order to constitute bad debt, the claim on the check or note, which is not yet completed, should be collected objectively or more than 6 months have passed from the date of the occurrence of the check or note, which is the date of the debtor's bankruptcy, etc., and based on the facts in its reasoning, it is difficult to recognize that the period of extinctive prescription of a promissory note in this case was not completed as of December 31, 1995, as well as all the claim on which the non-party company's bad debt was collected at the time of this case.
In light of the records, the above judgment of the court below is just and acceptable in accordance with the purport of the judgment of remanding the case, and there is no error in the misapprehension of legal principles as to bad debts. This part of the ground of appeal cannot be accepted.
3. On the third ground for appeal
The party questioning is merely a supplementary method of evidence and it cannot be recognized solely by the result of the party questioning without any other evidence (see Supreme Court Decision 83Nu492, Dec. 13, 1983). According to the records, the party questioning is not erroneous in the failure to adopt the only evidence as to the party's assertion even if the court failed to adopt it, since the plaintiff's request for questioning was withdrawn by the court of original trial after the plaintiff's remanding the case, and was adopted by the witness's application to prove the existence of the witness.
4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Lee Yong-woo (Presiding Justice)