In a case where Gap filed a lawsuit claiming the principal and interest of a loan against Byung who was jointly and severally liable when he did not recover the amount of KRW 1.8 billion and interest of the loan to Eul, and won was awarded a judgment in the declaration book of provisional execution, which received dividends of KRW 461,345,781 among the principal and interest of the loan of KRW 54,352,81 out of the principal and the remainder of KRW 406,92,90 among the principal and interest of the loan of KRW 54,352,81 out of the principal and the remainder of the loan of KRW 406,92,90 among them, the case affirming the judgment below which determined the receipt time of interest income as the claim for the principal and interest of the loan of KRW 1

In a case where Gap filed a lawsuit claiming the principal and interest of a loan against Byung who was jointly and severally liable when he was unable to recover the amount of KRW 1.8 billion and received a favorable judgment, and 54,352,881 won out of the loan principal and the remaining 406,92,90 won among the principal and the remaining 406,92,90 won are appropriated for repaying interest, the case affirming the judgment below which became final and conclusive in light of Article 39 (1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), Article 45-9-2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010), and Article 45-2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010) and the legislative purport of the judgment below which became final and conclusive after the judgment became final and conclusive.

Articles 24(3) and 39(1) of the former Income Tax Act (Amended by Act No. 9897, Dec. 31, 2009); Articles 45(9-2 and 51(7) of the former Enforcement Decree of the Income Tax Act (Amended by Presidential Decree No. 22034, Feb. 18, 2010);

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

Plaintiff (Attorney Kim Dong-ap et al., Counsel for plaintiff-appellant)

Racing Head of the Tax Office

Daegu High Court Decision 2008Nu243 decided October 17, 2008

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Article 39(1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009) provides, “The year to which the total amount of income of a resident belongs shall be the year in which the total amount of income is determined.” Article 24(3) of the former Income Tax Act provides, “The necessary matters concerning the scope and calculation of the amount received or received in calculating the total amount of income or the time when such amount is determined shall be prescribed by Presidential Decree.” Article 45 subparag. 9-2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010; hereinafter the same) by delegation provides, “the time of receipt of the principal of non-business loan shall be the date of payment of interest under an agreement: Provided, That where interest is paid before the date of payment of interest under an agreement, or where interest is paid before the date of payment of interest under an agreement, it shall be the date of payment of interest excluded from the total amount recovered from the tax base or the income.”

The court below, based on its adopted evidence, accepted a claim for the principal and interest of the loan of this case against the non-party 2, who was jointly and severally liable when the plaintiff was unable to recover the principal and interest of the loan of this case (hereinafter "the principal and interest of this case") from the non-party 1, and accepted a judgment of 2002Gahap8464 decided July 30, 2003 (hereinafter "the judgment in favor of the provisional execution declaration of this case") as executive title, and received a dividend of 461,345,781 won out of the principal and interest of the loan of this case from the non-party 2 in the compulsory execution procedure for the non-party 2's real estate, and rejected the claim for the dividend of the non-party 2,50,000 won which belongs to the non-party 4,52,992,90 won from the judgment of the court of final appeal, and rejected the claim of this case's provisional execution of this case's dividends of this case's 90, and its dividends of this case's dividends.

In light of the contents and legislative purport of the provisions mentioned above, and the period of attribution of interest income under the Income Tax Act shall be determined on the basis of whether the interest income in question is considerably mature and finalized to the extent that the possibility of the interest income is considerably high, along with the management and control of the interest income in question, the degree of objectiveization of the interest income in question, and the timing of securing the taxpayer's fees (see Supreme Court Decision 97Nu19144, Jun. 9, 198, etc.). In light of the above, even if a taxpayer was imposed the interest income tax, etc. on the receipt of dividends by the judgment in favor of the judgment in favor of the provisional execution book after the judgment was revoked in the appellate court and the return of dividends is possible, the judgment of the court below on the receipt date of the interest income in this case can be justified and acceptable.

The court below did not err in the misapprehension of legal principles as to the period of attribution of interest income as otherwise alleged in the ground of appeal.

2. Furthermore, the court below rejected the plaintiff's conjunctive assertion that even if the plaintiff had a claim for reimbursement of KRW 200 million against the non-party 1 separately from the principal and interest of the loan of this case, since the dividends in question received the repayment of principal and interest of the loan of this case, it cannot be appropriated for the repayment of the above claim for reimbursement of the amount of reimbursement. In light of the records, the court below's reasoning is also justified in light of the records.

The court below did not err in the violation of Acts and subordinate statutes, such as incomplete hearing on the issue dividend payment, as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)