Seoul High Court 201Nu37307 ( October 26, 2012)

early 208west 1940 ( December 24, 2010)

Other income when collecting in reality the amount in excess of the principal and interest of bonds;

Only when collecting the amount exceeding the principal and interest of the claim in reality, it shall be deemed that there is other income on the original claim.

Article 21 of the Income Tax Act

2012du28346 global income and revocation of such disposition.

Ansan ○

○ Head of tax office

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on October 23, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the ground of appeal as to the nature of the assignment of claims

(a) First, the court below acknowledged that the representative director of ○○ Shopping Co., Ltd. transferred the above company's stocks and operating rights, etc. to 0 billion won on June 23, 1997 (hereinafter "the Management Countermeasure Committee") and transferred them to 00 billion won on September 23, 1997 with interest rate of 00% per annum (hereinafter "the above bonds and other rights to transfer to ○○○○○○○'s Management Countermeasure Committee") and ② the above bonds and other rights to transfer were transferred to ○○○○○○○○○○○○○○○○○○○○○○○ upon the settlement of loans, etc., and the above bonds and other rights were transferred to 0 billion won on September 12, 1997. In addition, the court below acknowledged that the above bonds and other rights were transferred to ○○○○○○○○○○○○ Co., Ltd. by adding them to the above bonds and other rights to 00 billion won on September 30, 1997.

B. The ground of appeal on this part is that the fact-finding and judgment of the court below are unlawful, even though the ○○○ transferred the instant key claim to the Plaintiff and Gab○○○ for the purpose of securing the payment of the original claim in this case as a security or for the repayment thereof. However, this is nothing more than an error in the selection of evidence or the fact-finding which belong to the exclusive authority of the court below, which is a fact-finding court, and thus cannot be a legitimate ground of appeal. Furthermore, even if examining the fact-finding of the court below in light of the records, it

2. As to the ground of appeal on the collection of the claim of this case

A. Article 21 (1) 10 of the former Income Tax Act (amended by Act No. 6292 of Dec. 29, 200; hereinafter the same) provides that "a person who is one of other income and is paid a penalty or indemnity due to a breach or cancellation of a contract". Article 41 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17032 of Dec. 29, 200; hereinafter the same shall apply) provides that "the penalty or indemnity under Article 21 (1) 10 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17032 of Dec. 29, 200) is damages paid for the damages exceeding the principal amount of the original contract, regardless of its title, the court below acknowledged that the amount of the principal of the 300 billion won paid to the plaintiff's 10 billion won and the amount of the 300 billion won paid for other income."

Furthermore, the court below determined that the disposition of this case was unlawful for the plaintiff on the ground that the original claim of this case was extinguished by the assignment of credit substituted for repayment, and that the part exceeding the principal of the original claim of this case among the value of the disputed claim of this case that the plaintiff and Park ○○ acquired by the plaintiff and Park ○○ may be other income for the original claim of this case as the above payment or compensation, but the receipt date shall be deemed as July 24, 2000 on which the effect of the transfer of credit comes into effect, and that the plaintiff and Park ○○ shall not be deemed as June 14, 2007 when the dividend payment was affixed in accordance with the confirmation of the distribution schedule of the procedure for compulsory auction based on the disputed claim of this case.

C. However, we cannot agree with the judgment of the court below for the following reasons.

“Income tax is reasonable, regardless of the nature and effect under the private law. It is reasonable to impose income tax on a taxpayer on the ground that there is a tax-bearing capacity to pay a certain amount. Even if income is deemed to accrue under the private law, if it is merely calculated and indicated in the name, and it cannot be deemed that it actually controls, manages, and is equipped with a tax-bearing capacity, it cannot be deemed that there is income subject to income tax. From the value of the claim transferred by the debtor, the amount exceeding the principal and interest on the original claim can not be deemed as a penalty or indemnity due to default, which is intended to vest in the creditor. Although the amount of the principal and interest on the claim is changed, it cannot be deemed as 00 won in lieu of the principal and interest on the claim, and the amount of the claim transferred to the Plaintiff cannot be deemed as 00 won in lieu of the principal and interest on the claim. In light of the legal principles as seen above, it is difficult to view that the transfer of the claim is in excess of the original amount of the principal and interest on the claim originally transferred to the Plaintiff.

Nevertheless, the lower court determined otherwise that the instant disposition was unlawful on the ground that the time of receipt of the claim ought to be deemed as July 24, 2000, when the effect of the assignment of claim takes place. In so doing, the lower court erred by misapprehending the legal doctrine on the time of receipt of other income when the assignment of claim takes place in lieu of the repayment of debt, thereby adversely affecting the conclusion of the judgment. The

3. Conclusion

The judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.