early 2012Gu5199 (2013.06)

The amount of recovery is less than the principal and the illegal disposal is made due to the occurrence of a cause not to recover before determination or correction;

The plaintiff's interest income accrued before the decision and correction on the interest income, and the amount recovered from time to time falls short of the principal, and even if there were the interest income actually recovered in the taxable year before the occurrence of the same cause for recovery, it cannot be subject to the interest income tax, and it is illegal disposition.

2013Guhap743 Global Income and Revocation of Disposition

AA

Head of North Daegu Tax Office

May 8, 2013

June 28, 2013

1. On March 5, 2012, the Defendant revoked the imposition of global income tax for the Plaintiff in 2007, global income tax for the year 2008, global income tax for the year 2008, and global income tax for the year 2009.

2. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of dispositions;

A. The Plaintiff, from January 31, 2007 to November 25, 2009, lent a total of OOOO(hereinafter referred to as “instant loan”) 62 times to a high-tech who worked in the CCC Securities Asset Management Board, and the high-B repaid the Plaintiff 55 times in total from July 6, 2007 to November 17, 2009.

B. In the Plaintiff’s loan and the claim for revocation of fraudulent act against highB (Tgu District Court 20107 Gohap2255), the above court rendered the following judgments (hereinafter “instant judgment”) on January 12, 201, and KimD filed an appeal (Seoul High Court 201Na1584 ) and the final appeal (Supreme Court 201Da9634) (Supreme Court 201Da9634) on October 14, 201, and the final appeal was notified on January 27, 2013.

1. HighB pays to the Plaintiff the amount calculated by either 5% per annum from May 19, 2010 to 00, and 20% per annum from January 12, 201 to 00, respectively, for 000,000 won from May 19, 201 to 00, and for 0% per annum from the following day to the date of full payment.

2. As to the real estate listed in the attached list (hereinafter referred to as "the real estate of this case"),

A. The sales contract concluded on November 10, 2009 between the highB and KimD shall be revoked.

B. KimD shall implement the procedure for the registration of the vice branch branch of the Daegu District Court and the cancellation of the transfer of ownership registration by No. 126851, Nov. 27, 2009 to the Plaintiff.

3. The plaintiff's remaining claims against GoB are dismissed.

C. According to the instant judgment, the Defendant notified the Plaintiff of the expected amount of tax to notify the Plaintiff of the global income tax on March 5, 2012, on the ground that the Plaintiff obtained the total amount of interest income from financial transactions with high-B (=OOOwon in 2007 + OOOwon in 2008 + 2009, and hereinafter “the interest income in this case”). On March 5, 2012, the Defendant issued a correction and notification of the total amount of global income tax (=6OOwon in 207 + 2008 + OOOOwon in 209) (hereinafter “the initial disposition”).

D. On June 11, 2012, the Plaintiff filed an objection with the Director of the Daegu Regional Tax Office that the OOO members of the instant interest income belonged to E and ten persons, and the Director of the Daegu Regional Tax Office decided on July 20, 2012 to rectify the tax base and tax amount for each person to whom the interest income belongs, after re-audit, including financial data.

E. Accordingly, on September 14, 2012, the Defendant issued a notice of reduction, correction, and notification of the initial comprehensive income tax (hereinafter “instant disposition”) as reduction, correction, and notification, respectively, to KRW OO in 207, KRW 2008, and KRW OO in 2009, respectively (hereinafter “instant disposition”).

F. Accordingly, the Plaintiff filed a request with the Tax Tribunal on November 15, 2012, and on November 2013.

2.6. Decision of dismissal was received;

Facts without dispute over recognition, Gap evidence 1, 2, 7, and Eul evidence 1 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

On September 14, 2012, the Defendant issued a revised tax invoice and tax amount on each interest income accrued in 2007 through 2009 to the Plaintiff, and upon which the Plaintiff’s global income tax liability became final and conclusive, the Defendant’s global income tax liability was already determined on November 10, 2009, selling the instant real estate, which is one of its sole property, to KimD, was in excess of the obligation as at the time of November 10, 2009, and was awarded a favorable judgment on May 28, 2010 by filing a lawsuit against the said real estate against KimF, and the said high B was in excess of its location as at November 209.

As above, prior to the Defendant’s correction and notification of the above tax base and tax amount, the Plaintiff’s ground for non-collection of claims against GoB occurred, and the entire amount recovered by the Plaintiff falls short of the leased principal, and even if there were interest income actually recovered by the Plaintiff from GoB during the taxable year prior to the occurrence of the cause for non-collection, it cannot be subject to taxation. Therefore, the instant disposition made by the Defendant against the Plaintiff on a different premise is unlawful.

2) The defendant's assertion

In this case, the debtor's bankruptcy under Article 19-2 (1) of the Corporate Tax Act does not fall under a claim which cannot be recovered due to the debtor's bankruptcy, etc., and the debtor's high-B's assets, ability, etc. are not objectively and objectively impossible.

Even if it is not so, even if the plaintiff extended funds to high-B from 2007 to 2009, received interest several times, and it was not possible to recover the loan claim of this case at the time of the collection of interest, and even if the cause of impossibility of collection occurred, it is not possible to affect the duty to pay interest income that has already been specifically realized.

(b) relevant statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) The head and the mother KimF, and KangG owned the instant real estate. On July 27, 2009, GoB completed the registration of ownership transfer for the instant real estate due to the sale on June 29, 2009, and on November 27, 2009, the registration of ownership transfer was completed in the name of the wife KimD due to the sale on November 10, 2009. On the other hand, the instant real estate was the only real estate owned by GoB at the time.

2) In the instant judgment, the sales contract was revoked, and the cancellation of transfer registration of ownership in the name of GD was ordered, for the reason that the high-B in excess of liabilities sold the instant real estate, which is its sole real estate, to GD, constitutes a fraudulent act.

3) On the ground that the JJ also borrowed money several times from October 2004 to November 2008, it received a judgment that "SJ shall pay 310,000,000,000 won to HuJ and 30% per annum from November 1, 2009 to 30% per annum from the date of full payment."

4) On the ground that Kim Hdo was unable to repay the money several times from March 2003 to May 2008, 2008, Kim Hdo filed a lawsuit claiming a loan (Seoul District Court 2012Guhap10908) and decided on March 28, 2013 that "SB paid 20% interest per annum with OOO and 20% interest to Kim H from January 10, 2013 to the day of full payment."

5) Around September 2011, a number of victims including the Plaintiff et al. filed a complaint of highB in fraud (Tgu District Prosecutors' Office 2012 type No. 9923), but B was suspended due to the unknown whereabouts up to now.

6) Meanwhile, on February 4, 2010, the former owner of the instant real estate, KimF, and KangG filed a lawsuit seeking cancellation of the ownership transfer registration of the instant real estate against GoB, and KimD (Seoul District Court Seo-gu District Court Branch Decision 20107rhap485), and the said court rendered a favorable judgment on May 28, 2010.

Facts without dispute over the basis of recognition, and entries in Gap evidence 3 through 6 (including each number), and the whole purport of the pleading

D. Determination

1) Whether the instant loan claims are objectively recoverableable bonds

A) Even if there is no income in reality, the Income Tax Act adopts the so-called "right to calculate taxable income," and adopts the so-called "right to calculate taxable income," but even if there is a claim that is the cause of income, if it is objectively apparent that the claim subject to income subject to income becomes impossible to recover due to the debtor's bankruptcy, etc. and that it is no possibility to realize the income in the future, the income tax aiming at economic benefits should lose its premise, and it should not be imposed on the income subject to taxable income. However, it should be identified that the taxpayer has no income subject to taxation by asserting and proving such circumstance. In this case, the issue of whether it is impossible to recover the claim should be determined by an objective method of assessment according to ordinary social norms by taking into account the debtor's asset situation and payment ability (see, e.g., Supreme Court Decisions 2001Du1536, Oct. 25, 2002; 201Du13160, Sept. 8, 2011).

Article 51 (7) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereafter the same shall apply in this Act) provides that, in calculating the total income from non-business loans under the provisions of Article 16 (1) 12 of the Act, if the non-business amount is not recoverable in whole or in part from the debtor or a third party before the final return on tax base under the provisions of Article 70 of the Act or the tax base and tax amount under the provisions of Article 80 of the Act, because it falls under the provisions of Article 5 (2) 1 or 2 of the Act, it is clear that the principal is deducted from the recovered amount, and Article 55 (2) 2 of the former Enforcement Decree of the Income Tax Act provides that, in addition to the above cases, it is clear that there is no obligation to recover the above non-business amount due to the debtor's death, missing, etc., and that there is no obligation to collect the above real estate from the deceased and its debts.

B) Meanwhile, the Defendant asserts that the Plaintiff’s instant loan claim does not constitute an irrecoverable claim under Article 19-2(1) of the Corporate Tax Act, and therefore, Article 51(7) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23588, Feb. 2, 2012) provides that when calculating the total amount of profit from non-business loan under Article 16(1)11 of the Act, the Defendant shall first deduct the principal from the recovered amount if the relevant non-business loan amount falls under the claim under Article 19-2(1)8 of the Enforcement Decree of the Corporate Tax Act before the final return on tax base under Article 70 of the Act or the determination or correction of tax base and tax amount under Article 80 of the Act and the relevant non-business loan amount cannot be collected in whole or in part from the debtor or a third party. However, the instant disposition is subject to the former Enforcement Decree of the Income Tax Act, which is a tax law at the time when the taxation requirement is established, and the Defendant’s assertion is without merit.

Furthermore, according to the defendant's argument, it should be examined whether it constitutes a claim under Article 19-2 (1) of the Corporate Tax Act, and Article 19-2 (1) of the Corporate Tax Act provides that "the claims which cannot be recovered due to the reasons determined by Presidential Decree, such as debtor's bankruptcy, etc. shall be included in deductible expenses when calculating the amount of income for the pertinent business year," and Article 19-2 (1) 8 of the Enforcement Decree of the Corporate Tax Act provides that "the claims which cannot be recovered due to debtor's bankruptcy, compulsory execution, business closure, death, disappearance, or missing" shall be included in deductible expenses, and the plaintiff's loan claims in this case fall under the claims which cannot be recovered due to the debtor's missing B, and the defendant's assertion that Article 19-2 (1) of the

2) Whether an interest income actually collected in the taxable year prior to the occurrence of the cause for impossibility of collection is subject to taxation

A) Unlike the Corporate Tax Act, Article 51 (7) of the former Enforcement Decree of the Income Tax Act provides no institutional device that can be reflected in the deduction item of interest income even if the amount of loss was incurred due to the failure to recover the principal for non-business proceeds later, and therefore, it appears to be a provision to prevent unfair result in imposing interest income tax, and the above provision provides that the entire amount recovered until a certain cause for recovery occurs before the final return on tax base or the determination and correction of tax base and tax amount is below the principal amount, and there is no special exception, and it is difficult to discuss whether interest income has accrued under the Income Tax Act, taking into account the following: (a) the final return on tax base on interest income from non-business proceeds or the final return on tax base on tax base and tax amount on tax base before the determination and correction of tax base and tax amount; and (b) where the amount recovered by the time falls short of the principal amount before the occurrence of a certain cause not to recover the principal, it shall not be deemed to be subject to the income tax (see Supreme Court Decision 2002Du3139, Dec. 318, 2012).

B) On March 5, 2012, the Defendant issued a correction notice to the Plaintiff on March 5, 2012, 2007 through 2009, and the Defendant issued a reduction or correction notice to revoke a partial tax disposition on September 14, 2012, and the Plaintiff obtained an aggregate of interest income from financial transactions with high-B, but it was impossible to recover the Plaintiff’s interest income during 62 times from January 31, 2007 to November 25, 2009, and the Defendant used an aggregate of 000 0 00 00 00 00 00 00 00 00 00 00 00 00 000 00 00 00 00 00 00 00 00 2002 202 2002 200 00 00 00 002 2002.

Therefore, the instant disposition made by the Defendant on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.