Whether it constitutes a non-business profit

It is difficult to view that the instant association jointly and severally guaranteed the instant loan obligation and paid KRW 420 million to the Plaintiff as a repayment for the interest interest. Since it cannot be deemed that the interest income of the instant loan amounted to KRW 420 million, the instant disposition based on the premise that the Plaintiff took interest income of KRW 420 million is unlawful.

Article 16 of the Income Tax Act

2016Guhap61892 global income and revocation of disposition

Maap○

○ Head of tax office

June 29, 2016

July 13, 2016

1. The Defendant’s disposition imposing global income tax of KRW 170,928,920 on the Plaintiff on February 2, 2015 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On October 2007, the Plaintiff was requested by thisA to lend money, and on October 10, 2007, the Plaintiff provided ○○○○-dong ○○○○○-dong ○○○○-dong ○○○○-dong ○○○, the Plaintiff owned as a collateral and provided ○-dong ○○ ○○-dong ○○ ○○ ”○ ○-dong ○○ ○○ ”hereinafter referred to as “○ ○ bank”).

(hereinafter referred to as 'Housing○') borrowed KRW 530 million in the name of 'Housing○○', and among them, lent KRW 480 million by delivering it to thisA (hereinafter referred to as 'the instant loan'), and the remaining KRW 50 million was used by the Plaintiff.

B. On July 23, 2009, the Plaintiff provided the above ○○○-dong land as collateral, and used 300 million won under the name of ○○-dong land from ○ bank.

C. Around February 2010, Housing○○ paid KRW 10 million out of the loans indicated in the above A, to ○○ Bank. On July 22, 2010, the Plaintiff repaid KRW 50 million out of the loans indicated in the above A, to ○○ Bank. On September 17, 2010, the Plaintiff repaid KRW 925 million from ○○ Association. The Plaintiff repaid all of the loans described in the above A, and revoked each of the aforementioned collateral security rights.

D. BB Housing Redevelopment Association (the head of the association ○○, hereinafter “the instant association”) had the duty to pay KRW 900 million to housing ○○. However, on August 12, 2011, the said KRW 900 million was remitted to the Plaintiff’s account in the name of the Plaintiff.

E. On February 2, 2015, the Defendant: (a) the instant union jointly and severally guaranteed the instant loan obligation, and accordingly, remitted KRW 900 million to the Plaintiff for the repayment of the instant loan obligation; (b) the Plaintiff, excluding the principal amount of KRW 480 million, constitutes interest for non-business loans as stipulated in Article 16(1)11 of the Income Tax Act; and (c) on the ground that the Plaintiff omitted the report of interest income for KRW 420 million; and (d) the Plaintiff determined and notified the Plaintiff of the global income tax of KRW 170,928,920 (including additional tax) for the year 201.

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on April 29, 2015, but the Tax Tribunal dismissed the Plaintiff’s appeal on December 17, 2015.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 3, Gap evidence 4-1, 2, Gap evidence 12, 13, and 16, Eul evidence 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant association has not jointly and severally guaranteed the instant loan obligation. The instant association transferred KRW 900 million to the Plaintiff’s account in the name of the Plaintiff, and did not repay the instant loan obligation to the Plaintiff. The Plaintiff merely received KRW 100 million out of the said KRW 900 million as repayment for the principal of the instant loan obligation, and again remitted the remainder of KRW 754 million, excluding damages for delay against ○ bank, to thisA. Therefore, the Plaintiff did not receive interest amounting to KRW 420 million, and the instant disposition based on the premise that the Plaintiff was liable for interest income of KRW 420 million, is unlawful.

B. Relevant statutes

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

C. Facts of recognition

1) On October 10, 2007, thisA extended a loan of KRW 480 million to the Plaintiff, KRW 480 million, KRW 100 million, KRW 480 million, KRW 200,000, KRW 5300,000,000,000 from ○○ Bank as security, and KRW 530,000,000,000 from the loan of KRW 530,000,00,000 from the loan of KRW 530,00,00 from ○ Bank. The loan was drawn up as cash custody (Evidence 2) with the content that the loan is to be repaid to ○ Bank around March 2008.

2) On March 7, 201, thisA prepared a letter of payment (Evidence 6) stating that “The Plaintiff shall pay KRW 100 million to the Plaintiff: when the Plaintiff shall receive the service cost of ○○ Housing from the instant association: the payment reason for the payment: October 10, 2007 that “The Plaintiff shall pay KRW 530 million to the Plaintiff out of the service cost to be paid by the instant association, i.e., the Plaintiff shall pay KRW 100 million to the Plaintiff out of the service cost to be paid by the instant association, as security for the Plaintiff’s land of KRW 530 million and its interest.”

3) The Housing○○○ stated that the Plaintiff’s creditor, ○○○○○○○○○○ representative director of the Housing○○○○, the principal amount of KRW 530 million per annum and interest rate of KRW 20 million until October 9, 2010: The payment method: (a) the ○○○○ shall directly pay the service charges to be paid by the instant association in the manner desired by the Plaintiff; (b) the ○○○○ shall pay the Plaintiff the principal interest of KRW 530 million per annum to the Plaintiff; (c) the ○○ shall pay the principal interest of KRW 20% per annum to the Plaintiff at the same time the principal and interest shall be repaid (the principal amount of KRW 530 million + the interest of KRW 318 million between three years + the interest of KRW 850 million) between three years; and (d) the payment method: the ○○○○ head of the instant association: (a) the 100-day preparation date.

4) Meanwhile, on January 18, 2006, Kim○-○ was appointed as the representative director of the housing registry, and resigned on January 17, 2008. On January 17, 2008, 2008, ○○○ was registered as the representative director until he/she was dismissed pursuant to Article 520-2(1) of the Commercial Act on December 1, 2015.

5) On March 16, 2011, the Plaintiff’s statement of payment (the note of payment indicated in the above 3) made between the Plaintiff and the ○○○ in the name of the instant association was the content that the housing improvement in the name of the Plaintiff would repay the loan and interest that it received from the instant association, and that it promised to guarantee payment for the repayment of the loan. Although the period for the repayment of the loan has already expired, the Plaintiff would want to know the accurate time for the loan to be secured, and ... would have to know the exact time for the loan to be secured, and the confirmation of the thickness was sent on June 1, 201.

6) On August 5, 2011, thisA made up a loan certificate and a factual confirmation (Evidence 100,000) stating that “The repayment of principal shall be until December 31, 2011, for the Plaintiff: (a) the repayment of principal shall be subject to the same condition as the interest rate on loans from ○○ Bank; (b) the delivery method of the said loan: (c) the deposit of KRW 900,000 in the name of the Plaintiff; (d) the deposit of KRW 100,000 in the name of the Plaintiff; and (e) the deposit of the passbook and the seal shall be given to ○; and (e) thisA returned KRW 100,000 to the Plaintiff and returned the remainder of KRW 80,000,000 to ○○ freely and without the Plaintiff’s separate consent.”

7) The Plaintiff received KRW 900 million from the instant association on August 12, 2011.

8) On August 16, 2011, thisA prepared a loan certificate stating that “the principal shall be repaid by April 30, 201” with the Plaintiff, and that “the maximum debt amount shall be repaid by April 30, 201,” and on August 17, 2011, thisA set up a maximum debt amount of KRW 240 million with respect to the maximum debt amount of KRW 817-42,00,000, 00,000,000,000,000,000,000,000,000,000 won, and KRW 30,000,000,000,000,000 won, and KRW 80,000,000,000,000,000,000 won and KRW 80,000,000,000,000,000.

9) On August 18, 201, the Plaintiff transferred KRW 754 billion out of KRW 900,000,000,000, to an account under the name of thisA, which was remitted as described in the foregoing 7, 2011.

10) On December 14, 2012, a voluntary auction procedure was initiated with respect to ○○○○-dong 3,000, and on December 14, 2012, the Plaintiff received dividends of KRW 305,382,746 as a first-class mortgagee. On December 28, 2012, ○○-dong 817-42, ○○-dong 812, ○○-dong 810, 199,810, 200, 2000, 2000, 305,382,746, and 200,000 won were paid to the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence 2, Gap evidence 9-1, Gap evidence 10, Gap evidence 11-1, 3, Gap evidence 14-1, 2, Eul evidence 3-1, 2, Eul evidence 4-1, 4-2, 4-2, and the purport of the whole oral argument

D. Determination

As of October 10, 2007, ○○○○ directly pays the service cost to be paid by the instant association to the Plaintiff, a creditor, as desired by the Plaintiff. A joint guarantor: the instant association prepared a letter of payment with the content that “the maximum ○○○○○○” was “the instant association head of the instant association,” and on two occasions on March 16, 201 and June 1, 2011, the instant association promised the instant association to guarantee payment for the instant loan obligations, and even after the lapse of the period specified in the letter of payment, it was recognized as follows.

However, in light of the following circumstances revealed in light of the facts acknowledged in the above C. The above facts alone are not sufficient to deem that the instant association jointly and severally guaranteed the instant loan and paid the Plaintiff KRW 420 million to the repayment of the interest accrued therefrom, and there is no other evidence to acknowledge otherwise, and it cannot be deemed that the interest interest of the instant loan amounting to KRW 420 million. The instant disposition based on the premise that the Plaintiff was liable for interest income of KRW 420 million is unlawful.

1) On March 7, 2011, thisA prepared a letter of payment stating that “A will repay the Plaintiff’s debt to the Plaintiff as KRW 100 million out of the service charge when receiving the service charge from the instant association.” On August 5, 2011, thisA written a certificate of loan and a letter of confirmation containing that “a refund of KRW 100 million out of KRW 900 million to the Plaintiff out of the service charge shall be returned to the Plaintiff.” On August 18, 2011, the Plaintiff remitted to thisA KRW 14,500,000,000 after deducting KRW 146,000,000,000,000 from the total of KRW 90,000 and KRW 16,000,000,000,000 to ○ bank.

2) Each right to collateral security established by thisA on August 17, 2011 by the Plaintiff is merely 600 million won and does not exceed KRW 800 million. Furthermore, as to ○○○○○○○-dong 817-42, it is difficult to view that the priority was set up in the collateral value for 240 million won, which is the maximum debt amount. In fact, the Plaintiff was not paid dividends at all during the voluntary auction procedure for ○○○○-gu ○○○○○○-gu ○○○○○○○, and was paid dividends of 305,382,746 won in the voluntary auction procedure for ○○○○○-gu 3,000,000,000 won. In light of this, it is difficult to view that the Plaintiff separately lent KRW 80 million to ○○○○○ and received each right to collateral security for each of the above real estate (the Plaintiff can be deemed that the remainder of each of the loans of this case was transferred to 1.7575 billion won.175 billion won.

3) ① The statement of payment (No. 7) prepared by ○○○ on October 10, 207, which was the date of the instant loan, was written by ○○○○○○○○○○○○○○○○○○○○○○○, but on October 10, 2007, the representative director of ○○○○○○○, claiming that the said payment was actually made on March 7, 201. ② The principal amount of the instant loan was KRW 480,000,000,000,000,000,000 won was written by ○○○○○○○○○○○○○○ on October 10, 207, without stating any indication as to the rate and date of payment (No. 2,000,000,0000 won, the said statement of payment was to be made by 90,000,000 won,00 won, and was to be paid to the Plaintiff’s association’s money of the instant loan.

4) The written evidence evidence Nos. 5 and 7 alone is insufficient to acknowledge that the Plaintiff and EA agreed to the interest rate of the instant loan at 20% per annum, and there is no other evidence to acknowledge this otherwise. Even if the Plaintiff and EA set the interest rate of the instant loan at 20% per annum, the total amount of interest from October 10, 2007, to August 12, 201, the date of loan, from August 12, 201, is merely KRW 360 million.

3. Conclusion

The plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.