Seoul High Court 2009Nu5123 ( November 18, 2009)

early 2007west3011 ( October 22, 2007)

No capital gains tax may be imposed if the transferred claim becomes irrecoverable at the time of transfer.

Income tax may not be imposed on a transferred claim, if it becomes impossible to recover even if it is based on the time of transfer and it becomes objectively obvious that the income in the future is no longer feasible.

The contents of the decision shall be the same as attached.

쇠지지 지은은 3000 아은은은은은 3000 아은은은은은이 3000 아은은아은은은 3000 아은은아은은 3000 이 이 3000 이 3000209 head 23785

\u3000\u3000\u3000\u3000\u3000조@@

쇠지지300 쇠지지지 3000 지지지지지지지

Article 300 gross u3000 gross u3000 gross u3000 gross u3000 Seoul High Court Decision 2009Nu5123 decided November 18, 2009

쇠은은 이 개은은은 3000 개은은은 3000 개은은은은은 3000 이 이 이 3000 개은이 13, 1300

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

We examine the grounds of appeal.

1. Although the Income Tax Act does not have an actual income but adopts the so-called principle of confirmation of the right to taxable income, it is deemed as realizing the income when the right that is the cause of the income has not yet been determined. However, even if a claim that is the cause of the income has occurred, if it is objectively evident that the claim that is the cause of the income becomes impossible to recover due to the debtor's bankruptcy and that it has no possibility of realizing the income in the future, income tax may not be imposed on such income as taxable income (see, e.g., Supreme Court Decision 2002Du1953, Oct. 11, 200

2. According to the reasoning of the lower judgment, the lower court: (a) transferred the Plaintiff’s status as the successful bidder for the instant real estate to the leastA on February 5, 2003; (b) delivered by the issuer AB CD Co., Ltd. (hereinafter “AB CD”) on August 11, 2003, three promissory notes with a total face value of 315,00,000; and (c) refused to pay the said Three Promissory Notes within the payment deadline; (b) the Plaintiff thereafter returned three copies of the said Promissory Notes to the maximumA; (c) issued two copies of the said Promissory Notes to the Plaintiff’s account for the maximum amount of KRW 394,618,768, which were issued by the maximumA; and (d) determined that the Plaintiff’s payment of the said KRW 160,000 to the Plaintiff’s new account for the victims of the said Promissory Notes on December 31, 2003; (c) the issuer of the said Chapters 2 was objectively dissolved and the Plaintiff’s’s liability for fraud.

3. However, we cannot agree with the lower court’s determination that it is difficult to readily conclude that the Plaintiff’s claim subject to taxation was objectively impossible to recover.

A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

① Examining the details of the deposit and withdrawal from a new bank account in the name of AB CD between May 19, 2003 and January 30, 2004, the maximum amount of money was deposited, but most of them were withdrawn as a check or a bill settlement amount on the same day, and there is little case where the amount equivalent is maintained in balance for a certain period. On January 15, 2004, the total of KRW 10,030,000 was deposited on four occasions on four occasions, and the amount was immediately withdrawn as the settlement amount, and the balance was KRW 36,039,000 on the same day. On January 30, 2004, the amount was also withdrawn as KRW 36,039.

② From May 29, 2003 to January 30, 2004, the details of the deposit and withdrawal from the accounts of the National Agricultural Cooperative Federation in the AB CD’s name are also the same. On January 19, 2004, KRW 60 million was deposited on the check, and the check was immediately withdrawn, and the balance was KRW 71,742 on the same day, and was withdrawn until January 30, 2004.

③ According to the AB CD balance sheet as of December 2002, the total assets amounting to KRW 803,66,539 or total liabilities amounting to KRW 872,665,00 is the total assets amounting to KRW 872,665,00, capital amounting to KRW 68,998,461, and AB CD closed on December 31, 2003, and was deemed dissolved on December 1, 2008.

④ In the Incheon District Court Decision 2006Kahap6666, 684 (Consolidated) (Evidence 6) (Evidence 6), the Court held that, around October 2003, the highestA acquired 300 million won in total from the MF while the monthly interest payment of the debt borrowed from other persons amounting to KRW 8.4 billion, even if the monthly interest payment was received from other persons on the pretext of investment or loan, there was no intent or ability to repay the debt, and even if the land was sold, even if there was no intention or ability to transfer the name according to the contract, even if there was no intention or ability to pay the debt, the sum of KRW 310 million in total, KRW 72.5 million in total from EE, and KRW 300 million from HanD.

⑤ The amount of damage caused by the commission of the act, such as the fraud, committed by the leastA in the criminal judgment exceeds 2 billion won (including the amount of damage, such as the above GoF), and the total amount of the national and local taxes in arrears by the leastA is about KRW 2.3 billion. As of December 31, 2004, the balance of loans to the National Agricultural Cooperative Federation of the largestA in the National Agricultural Cooperative as of December 31, 2004 is KRW 810 million in total, and the balance of loans to the national bank is KRW 59,63,470 in total.

⑥ 최AA은 서울 양천구 @@동 926-8 @@아파트 101동 103호, 충남 당진군 @@리 328-4, 같은리 328-5, 시흥시 @@동 1742-5 @@프라자 제301호 등 다수 부동산을 소유하고 있었으나 대부분 경매절차가 진행되어 매각되었고, 현재 충남 @@군 @@면 @@리 241-4 임야 245㎡와 같은 리 산 66 임야 2,272㎡만을 소유하고 있는 것으로 보인다. 그런데 2009년 개별공시지가로 산정한 위 각 임야의 가격이 548,800원과 5,021,120원에 불과하고, 그나마 위 각 임야에 관하여 고GG 명의의 채권최고액 1억 400만 원의 근저당권이 설정되어 있고, 20억 원이 넘는 국세에 기한 압류와 3억 원이 넘는 기술신용보증기금의 가압류 등 각종 압류・가압류 기입등기가 마쳐져 있다.

7) In the original judgment, the lowest AA testified that he did not have any financial ability at all, and that AB CD was unable to repay due to his failure to perform his duty in early 2004.

8. The Jung-gu Incheon Metropolitan City made a disposition of deficit on the ground that it was proved that there was no property of a delinquent taxpayer on the aggregate land tax of 4,930,900 won of the largestA in 2003, and aggregate land tax of 5,060,970 won in 204.

B. Examining the above circumstances in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff’s claim against the leastA and AB CD, which are the cause of the transfer income of the instant case, was objectively obvious that it became impossible to recover even if based on the time of transfer, and that it became impossible to realize the future income.

Nevertheless, the court below held that it is difficult to view the plaintiff's claim as being objectively impossible. Thus, the court below erred by misunderstanding facts against the rules of evidence or misapprehending the legal principles on the possibility of transfer income, which affected the conclusion of the judgment. The defendant's assertion pointing this out has merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.