early 208west 1940 ( December 24, 2010)

The amount received in excess of the principal and interest of the original repayment shall be other income of the nature of damages for delay.

The assignment of claims by means of a security for the repayment of debts shall not be deemed substitute for the repayment of debts, and where the assignment of claims is limited to the transfer of claims, it shall not be deemed that the original claim is extinguished, and where it is not repaid even after the assignment of claims, the delay

2011Guhap15978 global income and revocation of disposition

Ansan

O Head of tax office

August 26, 2011

September 9, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of global income tax amounting to KRW 95,327,350 for the Plaintiff on March 14, 2011 shall be revoked.

1. Details of the disposition;

The following facts are either disputed between the parties, or acknowledged in full view of the purport of the whole pleadings in the descriptions of Gap evidence 1 through 5, Gap evidence 6-1 to 3, Gap evidence 7 through 10, Gap evidence 11-1, 2, Eul evidence 1 through 3, Eul evidence 5 and 6:

(a) Claims of the MaximumA with respect to the Countermeasure Committee on Management of Ownership XX (hereinafter referred to as the "Countermeasures Committee");

(1) On June 23, 1997, the MaximumA agreed to pay damages for delay calculated at the rate of 3% per month in addition to the amount of the transfer proceeds, on September 23, 1997, on the part of the Countermeasure Committee, 3,500,000,000, and the payment date, on September 23, 1997.

(2) On June 23, 1997, the Countermeasure Committee issued to the leastA one promissory note (referred to as “the Promissory note” of this case) endorsed by XX on September 23, 1997, at par value 3,500,000,000, and due date, September 23, 1997.

(3) On May 13, 1999, as the Countermeasure Committee did not pay the above amount, the LA was registered as the provisional attachment company on the 15th of the same month, upon receipt of the provisional attachment order with respect to the Seoul XX-Gu 000-00 large 4,823.1m2 (hereinafter “the site of this case”) owned by the Countermeasure Committee as Seoul District Court Branch 99Kadan15206, Nam-gu, Seoul District Court 99.

(4) In addition, LA filed an application for payment order of promissory notes against the Countermeasure Committee for the payment of the amount of KRW 3,500,000,000 and damages for delay due to the amount of KRW 36% per annum from September 24, 1997 to the full payment date, and the payment order was issued as of May 19, 200. The above payment order became final and conclusive around that time (hereinafter the above claim under the above payment order).

B. Each claim and assignment contract for the plaintiff and ParkB with respect to the leastAB

(1) ParkB received 1,00,000,000 won at par value on June 23, 1997 from LA, and 740,000,000 won at par value on September 12, 1997, each promissory note of which is KRW 1,740,000,000 (hereinafter referred to as the "debt of this case") from LA (hereinafter referred to as the "debt of this case").

(2) On September 12, 1997, the Plaintiff received 500,000,000 won for divorce agreement (including children's education expenses) and the return of loan until October 30, 1997. If the LA does not pay it by the above date, the Plaintiff shall be paid in addition to the settlement amount calculated at the rate of 21% per annum until the date of full payment, and if the LA does not pay it by September 12, 1999, the agreement that the LA would take over all the claims from the Countermeasure Committee together with the LAB (hereinafter referred to as the "agreement and the obligation of this case"). In addition, the Plaintiff received a promissory note from the LA to the LA on October 30, 197.

(3) In the event that each of the obligations of this case was not paid, the plaintiff and the Park Jong-sik received the claim for the payment order of this case from the LA on July 24, 2000 (hereinafter "transfer of claims of this case"), and agreed to divide the principal amount of KRW 3,500,000,000 for the payment order of this case from September 24, 1997 to September 24, 200 as the principal amount of the claim of the payment order of this case against the plaintiff Park Jong-B (5,000,000: KRW 1,740,000,000, namely, KRW 50/224 and KRW 174/224, each ratio of interest and delay damages from September 24, 197 to the above amount.

(c) Collection of takeover claims;

(a) Parts 669,642,857: The first collection of the instant amount;

(A) ParkB completed the registration of establishment of a collateral security right at KRW 3,400,000 with respect to the Obuilding on the ground of the instant site (hereinafter referred to as the “instant building”) for the purpose of securing the above claim for transfer, but received 3,000,000,000 from △△ Industrial Co., Ltd. that purchased the instant building on March 30, 2004.

(B) Accordingly, the Plaintiff was paid KRW 669,642,857 ( KRW 3,00,000,000 x 50/224), one of the above KRW 3,000,000 from ParkB around that time (hereinafter “the first collection amount”). (The amount equivalent to KRW 669,642,857 x 50/224)

(b) Parts 380,822,646: The second collection amount of this case

(A) On July 29, 2000, the Plaintiff and ParkB granted the above Seoul District Court Branch Decision 2000Da4267 decided July 29, 200 with an execution clause succeeding to the original copy of the payment order under the above assignment contract.

(B) On July 31, 200, the Plaintiff and ParkB filed an application for a compulsory auction on the instant site with the Seoul District Court Branch Decision 2000ta26866 on July 31, 200, and the auction procedure was in progress, the dividend court jointly prepared a distribution schedule with the Plaintiff and ParkB out of the amount of KRW 4,663,529,06 to be distributed to the Plaintiff and ParkB on September 5, 2002, including the amount of KRW 1,541,506,127.

(C) The KimCC filed a lawsuit of demurrer against the Plaintiff and ParkB as Seoul Southern District Court 2002Gahap10715, but the judgment against the Plaintiff was rendered on October 30, 2003, and the said judgment became final and conclusive on June 14, 2007, following an appeal and final appeal.

(D) On January 7, 2008, the Plaintiff actually received 380,822,646 won ( principal 344,401,055 won + interest for arrears 36,421,591) out of the total sum of the above dividends and interest for delay 1,687,341,838 won (hereinafter “the second collection amount of this case”).

(d) Details of the initial disposition;

(1) The defendant shall be deemed to have received the transfer of KRW 3,50,00,00 as principal and KRW 36% per annum from September 24, 1997 to July 24, 200, the total of KRW 7,065,065,972,603 as the total of KRW 2,849,182,50 [the plaintiff's share of interest income = 7,065,603x 03,032 ( = 500,00,000,500,000 + 740,000,000,000,000,000) and the remainder of KRW 9,509,979,09,000,000 per annum from 20,909,09,000,000,000.

(2) Accordingly, on May 11, 2007, the Defendant imposed and notified the Plaintiff of KRW 158,684,070 of global income tax for the year 199, and KRW 1,936,081,370 of global income tax for the year 200 (hereinafter “instant disposition”).

E. Details of the instant disposition

(1) On March 28, 2008, the Plaintiff filed a request for adjudication with the Tax Tribunal on March 28, 2008, and argued that the amount received in excess of the principal and interest subject to the initial repayment does not constitute income subject to taxation by means of bonds sale marginal profit. On December 27, 2010, the Tax Tribunal revoked the imposition of global income tax of KRW 158,684,070 on May 11, 2007 by the Defendant against the Plaintiff on May 11, 2007, and on the same day, rendered a decision that the imposition of KRW 1,936,081,370 on global income tax of KRW 1,936,00 on the same day against the Plaintiff was other income, and that the amount received by the Plaintiff in excess of the principal and interest subject to the initial repayment was corrected by re-auditing the corresponding necessary expenses for the year 204 and 207.

(2) Accordingly, the Defendant: (a) out of KRW 380,82,646, the amount of KRW 26,261,253 (this shall be the amount calculated by subtracting KRW 500,00,000 from the amount of principal of the Plaintiff’s contract deposit and KRW 21% per annum from October 30, 1997 to September 12, 1999; and (b) calculated by deducting KRW 695,904,110 from the amount of KRW 69,642,857 from the amount of KRW 380,82,646, the amount of KRW 354,561,39, the amount of KRW 393 from the amount of principal of the Plaintiff’s contract deposit and KRW 21% per annum from September 30, 197; and (c) notified the Plaintiff of imposition of global income tax and KRW 375,205,375, March 14, 2011.

2. Determination

A. The plaintiff's assertion

(1) The assignment of claims of this case, which was made on July 24, 200, constitutes a substitute payment for the repayment of claims under the agreement of this case, and the legal relationship between the Plaintiff and the leastA has been terminated, the Defendant’s disposition of this case, which was based on the premise that there exists damages for delay due to the nonperformance of the agreement of this case, is unlawful.

(2) In addition, the objective value of the instant payment order claim should be calculated as an amount expected to be recoverable from the claim. As long as the Plaintiff could not expect the completion of the building at the time of acquiring the instant payment order claim, it is reasonable to view the market value as KRW 344,401,055, and even if the Plaintiff collected KRW 669,642,857 with the Plaintiff’s efforts after the assignment of the instant claim, it is merely a redemption interest of the claim that is not subject to income tax or a transfer marginal profit of the claim.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Determination as to the defense prior to the merits

We examine the defendant's assertion that the lawsuit of this case is unlawful because it does not go through the pre-determination procedure.

(A) In the tax administration, two or more administrative dispositions for the same purpose were conducted in the course of step-by-step and development, and are related to each other. In the course of a tax litigation, the tax authority changed the taxation disposition subject to such disposition, and the reason for illegality is common, or in the event that several persons are jointly liable for the same obligation due to a uniform administrative disposition, one of the persons liable for tax payment and the National Tax Tribunal granted an opportunity to re-determine the basic facts and legal issues, such as when one of the persons liable for tax payment and the National Tax Tribunal took a lawful step-by-case procedure, and in the event that there is a justifiable reason such as where the taxpayer seems to be harsh to have caused a tax obligor to go through the pre-trial procedure, the taxpayer may file an administrative suit claiming the revocation of the taxation disposition even without going through the pre-trial procedure (see Supreme Court Decision 2007Du25817, May 28, 20

(B) On the other hand, the Plaintiff asserted that the amount received in excess of the principal and interest of the initial repayment should not be subject to income from the sale and purchase of bonds. The National Tax Tribunal decided that the amount received as above constituted miscellaneous income under the Income Tax Act as damages for delay caused by a breach of a contract, and decided that the tax base and tax amount should be corrected at the time of attribution of 2004 and 207. The fact that the Defendant issued the instant disposition against the Plaintiff is as stated above. Meanwhile, the purport of Article 56(2) of the Framework Act on National Taxes is that the Plaintiff would not be subject to the necessary principle of transfer of taxation, without considering the aforementioned reasons, for reasons such as large-scale nature, expertise, and formation of the tax disposition, it would be clear that the Plaintiff would not be subject to the aforementioned disposition of this case by using expert knowledge and experience of the tax authority prior to the filing of the lawsuit, and thus, it would be possible for the National Tax Tribunal to take a uniform tax administration by giving more opportunity to supervise and correct this case's tax base and tax amount of this case.

(2) Judgment on the merits

(A) Legal nature of 21% per annum from October 31, 1997 to September 12, 1999 for 500 million won.

According to the statement in Gap evidence No. 5, it can be recognized that the highest A promises the plaintiff on September 12, 1997 to pay KRW 500,000 per annum to the plaintiff until October 30, 1997. If it violates or delays the implementation of the promise, it shall be paid at the rate of 21% per annum from October 30, 1997 as well as at the rate of 21% per annum from October 30, 1997. Accordingly, it is reasonable to view that the highest A made and delivered to the plaintiff a written statement of payment stating that "I shall pay to the plaintiff a delay delay interest calculated at the rate of 21% per annum from October 31, 1997 to the date of full payment." Accordingly, it is reasonable to view that the agreement was made to pay the plaintiff a delay interest calculated at the rate of 21% per annum from October 31, 199 to the date of full payment.

(B) Whether the claim of this case was extinguished due to the assignment of claim of this case

1) An obligor’s transfer of another obligation in relation to the repayment of obligation to a creditor is presumed to have been transferred by means of a security for repayment of obligation or a repayment, barring special circumstances, and is not deemed to have been substituted for the repayment of obligation, and therefore, the assignment of obligation cannot be deemed to have terminated immediately if the assignment of obligation is made. The obligor is exempted from liability within the scope of the obligor’s discharge by receiving the assigned obligation from the obligee (see Supreme Court Decision 95Da1660, Dec. 22, 1995).

2) It is insufficient to conclude that the assignment of claims of this case was made in lieu of the repayment of the agreed amount. There is no other evidence to acknowledge it. Rather, the Plaintiff asserted that the payment order of this case was merely KRW 340 million due to non-performing loans. This is an amount less than the market price of the claim of this case. It cannot be deemed that the Plaintiff was transferred the payment order of this case with the intention to waive all rights to the least A. 30,000,000,000,000 won and less than KRW 50,000,000,000,000,000,000 KRW 70,000,000,000,000,0000 won and 70,000,000,000,000,000 won and 75,000,000,000,000 won and 75,00,000,000 won.

(C) Whether the instant disposition is lawful

As seen earlier, insofar as the assignment of claim of this case was made by means of a security for repayment of debt, the claim of this case was not extinguished due to the assignment of claim of this case. Ultimately, even after July 24, 2000 when the assignment of claim of this case was made, damages for delay of the agreed amount claim of this case shall continue to occur, and in this case where the sum of the second collection amount of the first collection of this case does not fall short of the damages for delay of the agreed amount claim of this case, 354,561,393 out of the second collection of this case was appropriated for damages for delay of the agreed amount claim of this case, there is no error of law in the imposition of this case by the defendant. Accordingly, the plaintiff's assertion

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.