Seoul Administrative Court 2013Guhap6954 (2013.06)

2012west 3785 (2013.05.06)

The amount equivalent to 10% of the principal of each investment received by the plaintiffs as interest name constitutes interest income in the actual meaning.

Even if the plaintiffs have re-invested the amount including interest for each transaction, each individual contract is separate and independent, and as long as the plaintiffs have been fully paid the principal and interest under each individual contract during the respective taxable periods, and the interest income is fully realized, the amount equivalent to 10% of each investment principal constitutes interest income.

2013Nu48134 Global income and revocation of disposition

1. GaB 2. GaB 3.CC 4.ND 5.E 6.F

1. 2. HH Head of the GG Tax Office 3. II

4. J. 5. Cheongf85 KK Head of J. J.

June 26, 2014

July 24, 2014

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. The part citing the judgment of the court of first instance

In the reasoning of the judgment of this court, the "1. 2. Giving rise to the legitimacy of the disposition of this case, the plaintiffs' assertion, (a) b. related statutes", among the reasons of the judgment of the court of first instance, the part of the judgment of the court of first instance, 1. 5. 6 "the part of the judgment of the court of first instance other than the plaintiffs Dood Dood Dood Do" was all dismissed, and the judgment of the plaintiffs Dood Dood Dood Dood 13 was dismissed on May 6, 2013", 2. 3. 10 "The Enforcement Decree of the Income Tax Act of the first instance" of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580 of Dec. 30, 2010), 3. The part of the judgment of the court of first instance 10 Dood 12 and 16 Dood 10 through 26 of the Civil Procedure Act is cited.

2. Parts to be dried;

(7) In calculating the gross income from profits accruing from a non-business loan under Article 16 (1) 11 of the Act, if all or part of the principal and interest are irrecoverable from the debtor or a third party because the relevant non-business loan falls under the bonds stipulated in Article 55 (2) 1 or 2 before the final return on tax base under Article 70 of the Act or the final return on tax base and amount of tax under Article 80 of the Act is determined or corrected, the calculation shall be made by preferentially subtracting the principal from the recovered amount. In such cases, if such recovered amount is short

3. Judgment on the plaintiffs' assertion

A. As to the first argument

(1) In full view of the facts cited above and evidence and the purport of the evidence stated in Eul evidence Nos. 7 through 10 (the number is omitted; hereinafter the same shall apply) and the entire arguments, the following circumstances, i.e., (i) it is not recognized that the plaintiffs have entered into a basic contract that regulates the entire monetary transaction with Kim XX, Ansan (hereinafter referred to as "Gla, etc.") in the course of monetary transaction, (ii) it seems that the plaintiffs have recovered not only the principal paid, but also the interest from Kim XX, etc. during the taxable period of the disposition of this case (hereinafter referred to as "period of taxation for dispute"; and (iii) it appears that the plaintiffs received the principal paid to Kim XX, etc. and the interest on the principal paid by the plaintiffs to Kim XX, etc. in the major taxable period, and again paid the money, the identity of each principal paid by the plaintiffs to Kim XX, etc. during the key taxable period is not recognized. Even if the plaintiffs submitted evidence and their arguments are all asserted, the individual monetary transaction contract between the plaintiffs and Kim Jong, etc.

(On the other hand, the plaintiffs asserted to the effect that the individual contract of this case is an investment contract, but in light of the fact that Kim XX et al. has agreed to pay the principal and interest of 10% with the plaintiffs within three months, the legal nature of the individual contract of this case is a monetary loan contract.

(2) In addition, in general, the term “interest” means the money received or its substitute in proportion to the principal amount and the loan period, regardless of the name thereof, and when based on the above facts and evidence, etc., the Plaintiffs appears to have regularly lent money to Kim XX et al. during the pertinent taxable period pursuant to the individual contract of this case and received an additional payment of money in proportion to the principal amount and the principal amount and enjoyed economic benefits therefrom. In light of the evidence submitted by the Plaintiffs and the circumstances of their arguments, even though considering all of the evidence submitted by the Plaintiffs, the money in addition to the principal that the Plaintiffs received from Kim XX et al. is deemed to constitute interest income under Article 16 of the Income Tax Act, and it is not merely a part of the principal leased by the Plaintiffs or a part of the principal borrowed by the Plaintiffs, such as the Plaintiffs’ assertion, it cannot be deemed that the Plaintiffs cannot be viewed as having received the actual meaning of the money received as interest name, but the Plaintiffs cannot be concluded to have received money from the victims of criminal fraud based on the premise that they received money in the pertinent taxable period.

(3) Ultimately, the plaintiffs' assertion on this part is without merit.

B. On the second argument

(1) Whether there is interest income from "non-business proceeds" under Article 16 (1) 11 of the Income Tax Act shall be determined by applying Article 51 (7) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580, Dec. 30, 2010; hereinafter "former Enforcement Decree of the Income Tax Act") which applies to the disposition of this case by individual loans. Thus, if there are several loans with interest income from a claim for a final return of tax base or a loan that has already been recovered at the time of determination and correction of tax base and tax amount, barring any special circumstance, if there is a claim for the interest of a loan that has already been extinguished at the time of determination and correction of tax base and tax amount, the interest income shall be deemed to exist on the loan, and the same shall apply to the case where the multiple loans with interest on the loan are related to the same debtor (see Supreme Court Decision

(2) In light of the above legal principles, with respect to each of the money lent to Kim XX, etc. by the plaintiffs according to the individual contracts of this case as of the time of the disposition of this case, it is recognized that the loan principal and interest have been recovered in full, and there is no other counter-proof. In light of the above legal principles, in light of the above, the claim for the principal and interest of each of the loans under the individual contracts of this case under the monetary loan loan contract of this case is already extinguished at the time of disposition of this case, and thus, Article 51 (7) of the former Enforcement Decree of the Income Tax Act cannot be applied.

In calculating the total amount of income from non-business loans pursuant to Article 16 (1) 11 of the Act in relation to the calculation of interest income, where the whole or part of the principal and interest cannot be recovered from the debtor or a third party because the non-business loan falls under the bonds which cannot be recovered due to the debtor's bankruptcy, etc. before the final return of tax base pursuant to Article 70 of the Act or the determination or correction of tax base and tax amount pursuant to Article 80 of the Act, the calculation shall be made by preferentially subtracting the principal from the recovered amount. In such cases, if the recovered amount falls short of the principal, the total amount shall be deemed non-existent. However, even though the method of calculating the interest income where all or part of the principal and interest cannot be recovered from the debtor, etc., it is merely the method of calculating the interest income, and it shall not be

(3) Ultimately, the plaintiffs' assertion on the premise that Article 51 (7) of the former Enforcement Decree of the Income Tax Act can be applied to the plaintiffs of this case is without merit.

C. On the third, the fourth argument

(1) According to the above facts and evidence as well as evidence Nos. 13 through 25, the plaintiffs were found to fall under the investment contract of this case after the filing of the lawsuit of this case, and the above contract was sent by content-proof mail to the effect that the contract of this case constitutes an expression of intent by fraud under Article 110 of the Civil Act. ② In addition, during the taxable period, the plaintiffs were deemed to have received not only the loan principal from Kim XX, etc., but also the interests of the plaintiffs during the taxable period. (On the other hand, in the case where the plaintiff, not the plaintiffs of this case, filed a complaint against Kim XX, etc. against the above AA et al., the prosecutor, acknowledged that the deception of the above AA et al. was after September 8, 2011, and charged Kim XX et al. with the charges of violating the Act on the AA of Aggravated Punishment, etc. of Specific Economic Crimes (Fraud). (3) The plaintiffs' assertion that the plaintiff's testimony and testimony were not related to the plaintiffs's testimony of this case, but to the purport that they were found to be 10%.

(2) Ultimately, the plaintiffs' assertion on this part of the contract of this case under the premise that there exists a legitimate and effective rescission of agreement or cancellation of the contract based on fraudulent means such as Kim XX, etc. are without merit.

4. Conclusion

Thus, the plaintiffs' claims of this case are all dismissed because they are without merit, and the judgment of the court of first instance is just in conclusion, and all appeals by the plaintiffs are dismissed.