Cho Jae-2013- Busan District Court-3799 ( November 14, 2013)

Whether the profit of the non-business loan is the profit of the non-business loan, and whether the business income is the business under the Income Tax Act or not.

The issue in the business shall be determined in light of social norms in consideration of all the circumstances, such as the commercial nature, continuity, and reflectness of the transaction concerned, the number of times of the transaction, the length of the transaction period, the amount of the loan, the amount of interest calculated, the method of raising funds, the establishment of a security right, the circumstances of physical facilities and human organization for the loan, the advertisement and publicity, etc.

Article 16 of the former Income Tax Act

2014Guhap308 Global Income and Revocation of Disposition

Interest income is deemed as business income under the Income Tax Act, and on this premise, it is on this premise.

The disposition of this case shall be revoked in an unlawful manner.

A) The Plaintiff’s long-term period from 2005 to 2012, excluding 2006 and 2007.

repeatedly lent funds to debtors, and the details of the lending from 2009 to 2011

The sum of the loans is about KRW 90 million, and the interest paid is about KRW 240,000,000;

Pursuant to the frequency, scale, etc. of financial transactions, including about 20 persons, for profit, continuity, and continuity;

It seems that it was conducted with repeatedness.

B) Upon examining the Plaintiff’s attitude of lending funds, the Plaintiff prepared a loan certificate, and the interest rate is ordinarily annual.

Above 24% up to 36%, while lending funds, establishing a mortgage on the debtor's real estate.

In the event that the value of real estate does not reach the amount of the secured claim, the other real estate shall be secured.

In addition, a collateral security was created and the loan was not repaid, against the debtor.

A lawsuit was filed, and since 2009 when the plaintiff did not engage in accommodation and restaurant business.

Considering the fact that interest income between the years 2011 exceeds or exceeds such income, profit-making nature

may be recognized.

C) On November 19, 2012, the Plaintiff registered credit business in ○○ Metropolitan City on November 19, 2012, and other daily newspapers.

It is recognized that no advertisement is made, but whether it is an external business under the Income Tax Act.

that is not a requirement to advocate that it is a price-holder.

D) The Defendant externally professed that it is a resident engaging in a monetary credit business and against many and unspecified persons.

In accordance with the basic rules of the Income Tax Act which provides that only a business lending money is conducted, the disposition in this case was taken, and the basic rules of the Income Tax Act are external guidelines within administrative agencies.

It is difficult to deem that there is binding force.

3. Conclusion

Therefore, we decide to accept the plaintiff's claim and it is so decided as per Disposition.

○ ○

○ Head of tax office

oly 2014.06

oly 2014.10

1. The Defendant’s disposition of imposing global income tax of KRW 17,072,940, global income tax of KRW 22,276,50, global income tax of KRW 21,082,200, and global income tax of KRW 21,082,200 for the year 2010, imposed on the Plaintiff on February 6, 2013.

The same shall apply to the order of the Gu office.

1. Details of the disposition;

A. From September 23, 2005 to July 14, 2009, the Plaintiff operated a restaurant with the trade name “○○○○○○”, “from August 18, 2011 to the date of △△△△,” and from August 2009 to 2011, the Plaintiff leased KRW 916,513,792 in total as follows and paid KRW 240,752,313 in interest income to 240,752,313 in total as follows. (b) The Defendant used the interest income paid to the Plaintiff during the said period to 205,738,246 in total, and to 64,401,716 won in total, 2011, 66,202,565 won in global income and to 205, 207, 2017, 2010, 2017, 2017, 2017, 2017.

[Reasons for Recognition] The facts without dispute, Gap evidence 1-4, 2-1 to 3, Eul evidence 1-1 to 3, and 2-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In light of the facts that the Plaintiff suffered losses due to the Plaintiff’s lending of money, frequency, period, and principal payment, and the Plaintiff’s registration of credit business on November 19, 2012, etc., the instant interest income is deemed as the business income earned by engaging in credit business for the purpose of acquiring interest income, not the profit of non-business loan but the profit of non-business loan. However, the instant disposition under the premise that the instant interest income is non-business loan without registration of business should be revoked.

B. Relevant statutes

It is as stated in the attached Table 3.0.

1) The Plaintiff has lent money since 2005. The amount of each interest income was 7,397,260 won in 2005, 1,887,123 won in 2008, 45,738,246 won in 2009, 64,401,716 won in 2010, 666,202,565 won in 201, and 50,080,000 won in 200 in 2012. (2) The Plaintiff prepared a loan certificate while making a loan, and the Plaintiff took measures to secure a claim by establishing a collateral security right on the debtor’s real property, and filed a lawsuit against the debtor who failed to pay the principal and interest.

“3) On November 19, 2012, the Plaintiff registered a credit business with the name of “Seoul Special Metropolitan City and Do Loan,” and registered its business with the same trade name as “ November 23, 2012.” [Recognizing] A’s evidence 1, 2, and 6’s evidence 1, 2, and 8’s evidence 1 through 31, and 8’s evidence 1, 2, and 6’s evidence 1 through 31, 2, and 2’s whole purport, and the entire purport of the pleadings.

D. Determination

1) Whether the income from a lending of money is a kind of non-business loan which is a type of interest income, and business income is determined depending on whether the lending of money constitutes a business under the Income Tax Act. Whether the lending of money constitutes a business under the Income Tax Act ought to be determined in light of ordinary social norms, taking into account all the circumstances, such as the profit and continuity of the lending in question, the number of times of the transaction concerned, the continuousness, the amount of the lending, the amount and interest calculated, the method of financing, the existence of a security interest, the status of physical facilities and human organization for the lending, and the status of advertisement and publicity (see, e.g., Supreme Court Decision 2003Du14505, Aug. 19, 2005).

2) In the instant case, taking into account the following circumstances known in light of the facts established earlier: