early 2011west 2888 ( December 14, 2011)

The disposition imposing the difference between the Plaintiff’s dividend and the leased principal as interest income is legitimate.

Therefore, the disposition imposing the difference between the leased principal and the interest income of the plaintiff cannot be reflected in the value of the real estate because the successful bid price is remarkably unfair, so the disposition imposing the difference between the leased principal and the interest income of the plaintiff is legitimate

2011Guhap43805 Revocation of Disposition rejecting a request for reduction or correction of global income tax

DoAA

Head of the tax office;

April 10, 2012

April 27, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s rejection disposition against the Plaintiff on July 27, 201, seeking revocation of the amount exceeding KRW 000 out of the global income tax of KRW 000 in 2009, shall be revoked.

1. Details of the disposition;

A. On May 1, 1991, the Plaintiff lent 00 won interest 10% per annum with interest short-term, 30 April 30, 1996, and 10% per annum with interest short-term, 1996, and 10% per annum for interest on delay (hereinafter “first-term loan”). The debtor was unable to repay the above loan to the Plaintiff by December 23, 2004, and the principal and interest was generated to 00 won in total.

B. On December 23, 2004, the Plaintiff extended additional KRW 000 to the obligor 8% per annum for interest welfare, maturity of 12% per annum for interest and interest accrued (hereinafter “the second loan”). The Plaintiff agreed that the sum of the principal and interest of the LL loan shall be determined at KRW 000 and re-leased to the obligor (as of December 23, 2004, the leased principal shall be KRW 000; hereinafter “the leased principal”). In order to secure each loan, the Plaintiff completed the registration of the establishment of a mortgage over the real estate listed in the attached list owned by the obligor (hereinafter “the instant real estate”).

C. up to October 5, 2008, the debtors were unable to repay the borrowed money from the Plaintiff, and the principal and interest accrued therefrom amount to KRW 000.

D. On October 6, 2008, the Plaintiff was unable to receive a loan to the debtor, and applied for a voluntary auction (2008, 27998, hereinafter referred to as "the auction of this case") with respect to the real estate of this case to the Daejeon District Court. As a result of the appraisal conducted during the auction of this case, the appraised value of the real estate of this case was KRW 000,000 as of November 11, 2008.

E. When the Plaintiff applied for the auction of this case, the Plaintiff reported the claim amount of KRW 000,000, and bided for the auction of this case as KRW 000 (hereinafter “the auction price of this case”) and was awarded a successful bid for the instant real estate. During the process of completing the registration of establishment of a neighboring mortgage over the instant real estate in preference to the Plaintiff. The amount of the claim against the debtors related thereto was KRW 00,000, in total, KRW 000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000 won.

F. On November 23, 2010, the Defendant determined that the Plaintiff collected KRW 000,000 through the instant auction, and that the interest income was generated, and notified the Plaintiff that the said interest income was underreporting. Accordingly, the Plaintiff filed a revised tax base return on November 30, 2010, and additionally voluntarily paid KRW 000 for global income tax in 2009.

G. On May 27, 2011, the Plaintiff: (a) on the ground that the foregoing revised return and additional payment are unreasonable to the Defendant; and (b) on the ground that:

A claim for the revocation of the portion exceeding KRW 000 out of the annual global income tax (including additional tax), but the defendant rejected the above claim on July 27, 201 (hereinafter referred to as "the rejection of this case").

H. On August 16, 201, the Plaintiff dissatisfied with the instant refusal disposition and filed a petition with the Tax Tribunal for a trial.

However, the above claim was dismissed on December 14, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 8, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the rejection disposition of this case is legitimate

A. The plaintiff's assertion

Income tax is based on the premise that the Plaintiff was economically taxable income, and it was presumed that the Plaintiff expected to obtain a successful bid at the time of the bid and bid at a price higher than the objective exchange value of the instant real estate and received the entire claim return amount. The real value of the instant real estate is KRW 000 after deducting 000 won of the claim amount of senior mortgagee than the Plaintiff from 000 won of the appraised value. The interest income accrued to the Plaintiff shall be deemed KRW 000 ( = 000 won -00 won). Thus, the instant rejection disposition based on the dividend of the instant case is unlawful.

B. Relevant statutes

Paper in the Appendix

C. Determination

In a case where an obligee acquired the mortgaged real estate at the auction procedure, the benefits arising from the successful bid cannot be deemed as the benefits that have been received as a repayment of obligation (see, e.g., Supreme Court Decision 91Nu3420, Nov. 26, 191). The amount obtained by subtracting the leased principal of this case from the value of the real estate of this case cannot be deemed as the Plaintiff’s interest income immediately, and the amount obtained by subtracting the leased principal of this case from the dividends of this case that the Plaintiff received as a creditor against the obligor as a creditor against the obligor should be deemed as the Plaintiff’s interest income. However, since the Plaintiff asserted that the dividend of this case was derived from the successful bid price of this case, it is problematic whether the bid price reflects the value of the real estate of this case.

On the other hand, Article 89 of the Enforcement Decree of the Corporate Tax Act provides that Article 89 of the Enforcement Decree of the Corporate Tax Act shall apply mutatis mutandis with respect to the provision on the unfair calculation basis of the market price (Article 98(3) of the Enforcement Decree of the Income Tax Act). However, the Inheritance Tax and Gift Tax Act (hereinafter "the Inheritance Tax and Gift Tax Act") does not provide any supplementary provision with regard to the calculation basis of the market price of the assets. However, it can be referred to as "the Inheritance Tax and Gift Tax Act") in detail in relation to the market price." Article 60(2) of the Inheritance Tax and Gift Tax Act provides that "the market price shall be generally established when a free transaction is made between many and unspecified persons, and shall be recognized as the market price under the conditions as prescribed by the Presidential Decree, such as the expropriation price, public sale price, appraisal price, etc." Article 49(1) of the Enforcement Decree of the same Act provides that "if an auction is made, the auction price of this case shall be recognized as the market price. Furthermore, there is no special reason to acknowledge that the difference between the Plaintiff's auction and auction price of this case's.

3. Conclusion

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

section 3.