퇴직 후에 독자적 영업활동으로 발생한 소득의 소득구분[국승]
Cho High Court Decision 2007Du3534 (O. 25, 2008)
Income classification of income generated from independent business activities after retirement;
After retirement from a company that served as an officer, where benefits and activity expenses are not paid, while maintaining as if they were formally in office so that they can conduct their own business activities, and receive income from such activities through delivery and receiving activities at a certain rate, and receive income as earned income, it shall be the business income which is the consideration for continuous and repeated business activities.
The contents of the decision shall be the same as attached.
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The imposition of global income tax of KRW 102,406,540 (including additional tax) for the Plaintiff on April 4, 2007 by the Defendant shall be revoked.
1. Quotation of judgment of the first instance;
The reasons for this Court concerning this case are as follows: "A evidence Nos. 8-1 and No. 9 of the Reasons for the Judgment of the court of the first instance can be recognized," and "I do not believe that each testimony of Gap's evidence Nos. 8-1 and No. 9 of the Reasons for the Judgment of the court of the first instance, and each testimony of the number of days for the trial witness Nos. 8-1 and No. 9 of the court of the first instance, and no other counter-proof evidence exists)" are added as stated in the Reasons for the Judgment of the court of the first instance, except for the addition of "the additional assertion and the judgment thereof in the appellate trial" as stated in the following 2. Thus, they are cited as it is
2. The assertion added in the appellate trial and the judgment thereof
(a)a further assertion;
The Plaintiff received fees of KRW 25,00,000 for the case of concluding a contract with the AA communication network management body in 2002. Thus, even if such fees are deemed business income, it should be treated as income belonging to the year 2002. However, the instant disposition that calculated the comprehensive income tax belonging to the year 2001 by deeming such fees as being included in the income amount belonging to the year 2001 is unlawful within the scope of the said fees.
B. Determination
In cases where there is an interval of time between the time when a right which causes income and the time when income is realized, a right which is not at the time when income is realized in taxation shall be deemed income at the time when such income is realized and the income for the year concerned shall be calculated (the principle of confirmation of right), and on the other hand, the time of receipt of business income from the provision of personal services shall be "the date when the provision of services is completed" (Article 48 subparagraph 8 (amended by Presidential Decree No. 17825 of Dec. 30, 2002).
In this case, it is not sufficient to recognize that the year to which the fees the Plaintiff received as a case for concluding a contract with the AA communication network management body was the year of 2002, and there is no other evidence to acknowledge it.
Rather, in full view of the overall purport of the pleadings in evidence Nos. 5 and evidence Nos. 5, the AA communication network management body concluded a contract for the purchase of goods from the non-party company on Nov. 22, 2001 as a result of the Plaintiff’s activities, and the contract was written from Nov. 22, 2001 to Dec. 21, 2001; and the written agreement concluded between the Plaintiff and the non-party company does not state any matters concerning the time when the non-party company pays the profit accrued from the Plaintiff’s business activities to the Plaintiff. According to the above facts of recognition, the contract concluded between the non-party company and the AA communication network management body and the non-party company based on the purchase contract concluded between the Plaintiff and the non-party company by the purchase contract between the non-party company and the AA communication network management body and the non-party company (the conclusion of the contract for the purchase of goods refers to the Plaintiff’s completion of the provision of services). The year to which the above fee reverted should
Therefore, the plaintiff's above assertion is without merit.
3. Conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.