Cho High Court Decision 2009No3080 (No. 13, 2010)

It is reasonable to view that income subject to taxation under the Income Tax Act is realized at the time of receiving penalty.

It is reasonable to view that income subject to taxation under the Income Tax Act has already been realized to the Plaintiff at the time when the Plaintiff received the penalty regardless of whether the crime of breach of trust is established against the Plaintiff or the Plaintiff.

2010Guhap45958 Global income and revocation of disposition

Gangwon A

Director of the District Office

April 19, 2012

June 7, 2012

1. The part of the disposition imposing global income tax imposed on the Plaintiff on December 15, 2008, which exceeds KRW 000, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/5 are assessed against the Plaintiff, and the remainder are assessed against the Defendant.

The disposition of imposition of global income tax of KRW 000 against the Plaintiff on December 15, 2008 shall be revoked.

1. Details of the disposition;

A. The plaintiff, while working as the representative director of BB Capital Co., Ltd. (hereinafter referred to as the "BB Capital"), was delegated to take over the stocks and management rights of DDDB to EE (hereinafter referred to as the "EE") and entered into a stock sales contract with the former F on October 25, 2004 to purchase EE stocks and purchase 675,000,000 won (hereinafter referred to as the "stock sales contract of this case"), the plaintiff paid 00 won from the former F as the down payment, and paid 00 won in total as the down payment around December 30 and January 31, 2005, and the former FF made a request for cancellation of the contract of this case to the plaintiff on January 6, 2006 without having consulted with the former FF on the cancellation of the contract of this case to the former FF and made a request for cancellation of the contract of this case to the plaintiff at will.

C. On December 15, 2008, the Defendant considered 000 won of the penalty received by the Plaintiff at the time of the cancellation of the agreement on the purchase and sale of shares as the Plaintiff’s other income and imposed KRW 000 of the global income tax for the year 2006 (hereinafter “instant disposition”).

D. The Plaintiff filed a request for a trial with the Tax Tribunal on August 5, 2009, and the Tax Tribunal dismissed the Plaintiff’s request on September 13, 2010.

Facts without dispute over the basis of recognition, Gap evidence 1, 2, and Eul evidence 1, and the whole purport of the pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff received KRW 000 as penalty for breach of contract from the formerCC upon delegation of the latter from the formerCC to the latter. However, since the formerCC brought a civil action against the Plaintiff seeking compensation for damages equivalent to a penalty for breach of contract against the Plaintiff, the ownership of income has not yet become final and conclusive, and the Plaintiff’s amount of penalty equivalent to the penalty for breach of contract should be deemed to be attributed to the latter rather than the Plaintiff. Therefore, the instant disposition based on the premise that the Plaintiff is the subject to whom the penalty equivalent to the penalty is attributed is illegal.

2) Even if the instant disposition is lawful, and, on the ground that the Plaintiff violated the agreement at the time of receiving penalty from the formerF, 000 won returned to the formerF when calculating the Plaintiff’s income should be deducted. In addition, the Defendant’s disposition that the Plaintiff made the total amount of penalty received from the formerF as the income attributable to the Plaintiff, without going through such procedure, without going through a determination procedure of income amount, is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(i) the current status and details of negotiations between the Plaintiff, the JGG, and the F;

A) At the time of 2002, the formerF operated relay broadcasting in the Hong-gun area, and HH operated relay broadcasting in the Seocho-si area. They were able to obtain permission to convert relay relay broadcasting companies into CATV broadcasting businesses after the Broadcasting Act was amended in 2002, and integrated into EE around August 2002.

B) EE has been subject to various lawsuits (in the process of management prohibition, cooperation, and confirmation of existence) between DDRB Co., Ltd. in competition with II Broadcasting (hereinafter referred to as “II Broadcasting”), and in the case of loss in the lawsuit with II Broadcasting at the time of obtaining the CATV broadcasting license in 2003, it has been subject to a conditional license that the license is revoked.

C) After integration, the EEE shares were 50% in total, 50% in total, 5% in total, 5% in total, and 5% in total, and Kim H, and Kim H entered into a contract to transfer 000 won in total to KimJ on July 1, 2003. The formerF and KimJ jointly managed the EE.

D) However, when Kim J was unable to pay the purchase price of shares to Kim H due to the shortage of funds, and Kim J tried to dispose of 50% of its shares to another, and it began to contact with the Plaintiff in order to prepare a scheme to sell the shares and management rights of EE in order to obtain a plan to sell the shares and management rights of EE due to the lack of financial resources of EE, and the Plaintiff again came to negotiate with the JGGGG, which is an affiliate company of the K Group, as one of the largest multiple CATV broadcasting business operators in Korea (mO and Multi Sym Co., Ltd.) and the representative director of the LL Broadcasting (hereinafter referred to as the “LL Broadcasting”).

E) Around 2004, competition among multiple CATV broadcasting business operators was heated, and at the time, K Group was under the name of K Group CATV broadcasting business operators under the name of K Group CATV broadcasting business operators, and it was difficult to accept and merge all other integrated CATV broadcasting business operators directly under the name of K Group CATV broadcasting business operators.

F) From July 2004 to October 2004, the Plaintiff and JinG consulted on the purchase of the EE acquisition fund, the stock purchaser of the stock sales contract entered into with the EEF, and the type and content of the contract.

2) Conclusion of a first agreement between CCC and the Plaintiff

On October 22, 2004, on the following terms and conditions as the adviser of K Group affiliate affiliated companies, JungCC concluded an agreement with the Plaintiff on October 22, 2004 (hereinafter referred to as the “first agreement”) with the view to becoming a party to the instant stock transaction.

3) Conclusion of the instant share sales contract between the formerF and the Plaintiff

On October 25, 2004, the Plaintiff concluded the instant stock sales contract with the following content: (i) between the former and the latter, and (ii) between the seller, and (iii) the Plaintiff, the buyer, the buyer, and (iv) 675,000 shares of EE (the former are to purchase 225,000 shares from Kim J in addition to 450,000, and sell the total of 675,000 shares).

4) Progress of the instant sales contract

A) On October 25, 2004, pursuant to the first agreement, the Plaintiff received KRW 000 from PCCC through BB Capital, and paid KRW 000 to FF on the same day as a down payment pursuant to the instant stock sales agreement, and received a down payment receipt, confirmation of non-existence of stock restriction real rights, and confirmation of non-existence of stock issuance and transfer of ownership from FF. After which the Plaintiff issued to PCC a copy of the instant stock sales agreement and each of the above documents delivered from FF.

B) On November 11, 2004, according to the instant share purchase agreement, the Plaintiff issued a real share certificate and a transfer application for 450,000 out of the shares subject to the instant purchase and sale, and a confirmation letter of request for storage of a real share certificate, and then delivered a copy of the confirmation document, etc. (other than the transfer application, and the transfer application was excluded) to the FF.

5) Conclusion of the second agreement between CCC and the Plaintiff and the subsequent implementation process

A) Meanwhile, around December 2004, the Plaintiff became aware of the fact that the representative director of BB Capital, who is a related party under related Acts and subordinate statutes, and thus, the Plaintiff is obliged to pay high-rate taxes when borrowing money from BB Capital. Accordingly, the Plaintiff offered to PCC that it would directly borrow money from PCC without going through BB Capital, and agreed to do so.

B) On December 30, 2004, the Plaintiff drafted an agreement on a monetary loan loan with 500 million won as agreed, 6% per annum, and 50 million won due on January 31, 2007, and paid 500 million won as part payments to NAF.

C) After that, on January 10, 2005, regularCC and the Plaintiff concluded again the following arrangements to modify the first arrangement by means of lending the purchase fund of the instant shares to the Plaintiff directly (hereinafter referred to as “the second arrangement”), and on the same day, regularCC set up an agreement on cash loan loan with 000 won loaned to the Plaintiff by the Plaintiff through BB Capital, as the direct agreement was 6% per annum and due date on January 31, 2007.

E) After that, according to the second agreement on January 31, 2005, the Plaintiff drafted an agreement on a monetary loan for consumption with 000 won and 6% annual interest rate, and the payment period was made on January 31, 2007, and paid 00 won as part payment to NAF.

F) Meanwhile, after the conclusion of the instant share purchase agreement, the Plaintiff was appointed as a joint representative director of the EE and participated in the management of the EE, while managing the funds of the EE, made payment of wages to the employees, and dealt with the permission work of the EE, made payment of the obligations to the program provider holding the EE as the Plaintiff’s personal property, and responded to the lawsuit with the II Broadcasting.

G) On December 17, 2005, the Seogu District Court rendered a favorable judgment of the EE in respect of the lawsuit for non-business start-up (Seban District Court Seosan Branch Branch Decision 200271-hap822) and the lawsuit for non-business start-up confirmation (Seban Branch Court Decision 200371-hap324) filed against the EE against the E. The Supreme Court rendered a favorable judgment on November 10, 2005 with respect to the preliminary injunction between II Broadcasting and EE (Supreme Court Decision 2003Da29692) against the EE. The Korea Broadcasting Commission decided to re-permission for a CATV broadcasting business for the EE, and on December 30, 2005, issued a renewed recommendation to the E E E E broadcasting under the condition that the E broadcasting will be re-permission for the E E broadcasting business start-up. However, the Korea Broadcasting Commission issued a renewed recommendation to the E E E broadcasting.

6) QQQ(QQQ)그룹 측의 주식매수 제의와 이 사건 주식매매계약의 합의해제

가) 한편， QQQ(QQQ)그룹 계열사인 주식회사 QQQ케이블넷(이하 'QQQ케이블넷' 이라 한다)은 2005. 12.경 EEEE의 경쟁사인 II방송의 인수를 진행하면서，동시에 전FF에게 EEEE 주식 전부의 매수를 제의하였는데，QQQ케이블넷이 제시한 조건은 이 사건 주식매매계약보다 매수가액이 높을 뿐 아니라，EEEE에 통합되어 있는 중계유선방송사업자의 사업권 보장까지 포함하고 있었다.

나) 전FF은 QQQ케이블넷이 II방송을 인수하였다는 보도가 난 2006. 1. 6. 원고에게 이 사건 주식매매계약 해제통보서를 발송하면서 계약해제를 요청하였고，원고는 정CCC과 협의를 거치지 않고，전FF의 해제요청을 받아들여 2006. 1. 11. 전FF 으로부터 이마 지급한 000원 및 위약금 000원을 지급받기로 하면서 이 사건 주식 매매계약을 합의해제하였다. 원고는 2006. 1. 13. 위 합의에 따라 전FF으로부터 000원을 지급받았다.

다) 전FF은 2006. 1. 12. QQQ케이블넷에 EEEE 발행주식 180，000주를 000원(1주당 000원)에 매도하기로 하는 주식매매계약을 체결하고， 전FF， 전RR， 전SS， 전TT， 전UU(이하 '전FF 등'이라 한다)은 같은 날 QQQ케이블넷에 EEEE 발행주식 720，000주를 000원(1주당 000원)에 매도하기로 하는 주식매매계약을 체결함으로써，이 사건 주식 매매대상 주식 675，000주를 포함한 EEEE 발행주식 900，000주 전부를 QQQ케이블넷에 매도하였다.

D) On March 23, 2006, the Plaintiff deposited the sum of the borrowed amount of KRW 000 and the interest (000) calculated at the rate of 6% per annum from the date of receipt of the borrowed amount received from the regularCCC as the principal deposit, and from March 23, 2006 (LL District Court No. 2109 of 2006).

7) Progress of criminal case against the plaintiff

Around 2007, Jung-CCC filed a complaint against the plaintiff on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the plaintiff was acquitted on Jan. 1, 2008 by Hongsung Branch Court of Daejeon on Dec. 10, 2008. However, on Dec. 10, 2008, the appellate court was sentenced to three years of imprisonment and was sentenced to dismissal by the Supreme Court on April 9, 2008.

8) Agreement between the F and the Plaintiff on reduction of penalty

After the cancellation of the above agreement, the formerF requested the Plaintiff to return the EE real stocks, but the latter asserted the ownership of the said stocks, and incurred litigation costs up to KRW 000,000,000 on the wind to file a criminal complaint and civil lawsuit against the Plaintiff and the formerF. On March 19, 2008, the formerF sent a certified mail to the effect that on March 19, 2008, the Plaintiff sent out part of the penalty for breach of contract paid to the Plaintiff, and the Plaintiff and the formerF agreed to reduce the penalty amount to KRW 00,000,000, and around that time, the Plaintiff returned the penalty amount to the formerS.

[Based on recognition] The evidence set forth above, the evidence set out in subparagraphs A through 7 (including the number number, if any), the evidence set out in subparagraphs 2 and 3, the witness set out in subparagraphs 2 and 3, the testimony of the former F, the court's locked and south points in the national bank, and the court's order for submission of each financial transaction information to the Korean bank (Scar-dong points, and the clearing house in the Central Cancer

D. Determination

1) Whether the income equivalent to the penalty is attributed to the Plaintiff

In light of the economic aspect, taxable income should be deemed as realizing the income subject to taxation under the Income Tax Act, inasmuch as the legal evaluation of the causal relationship in which income is derived is not always lawful and effective, and even if illegal income is caused by criminal act, it constitutes taxable income unless a taxpayer returns it to the person to whom it belongs, and if a taxpayer does not return it to the original person after receiving the money due to criminal act, it should be deemed as having already been realizing the income (see, e.g., Supreme Court Decision 2002Du431, May 10, 2002). In this case, it is reasonable to see that the Plaintiff was a contracting party to the instant contract with the ECE’s stocks and management right delegation, and that the Plaintiff did not transfer the purchaser status under the instant contract with the EEF, and that the Plaintiff did not have any obligation to pay taxes to the Plaintiff under the premise that it had already been established at the time of the 2nd purchase contract with the ECE, and that the Plaintiff did not have any obligation to pay taxes to the Plaintiff or the ECC’s shares.

2) Whether the penalty returned to the FF is deducted

The Plaintiff and JeonF agreed to reduce the penalty of KRW 000 on March 27, 2008 to KRW 000, and around that time, the Plaintiff returned the penalty of KRW 000 to JeonF, as seen earlier, and according to the agreement on reduction of penalty among the penalty of KRW 000, which the Plaintiff received from JeonF, it is reasonable to view that the Plaintiff’s return of KRW 000,000,000, which is the remainder after deducting the amount as unrealized income, is subject to income tax. Therefore, global income tax to be paid by the Plaintiff is KRW 00,00,000, which is an additional tax notice according to the judgment of the attached tax calculation table, and is unlawful.

3) Whether the deposit amount is recognized as necessary expenses

In imposing global income tax on other income, the total amount of income must be the expense directly corresponding to the total amount of income in order to be recognized as the necessary expense to be deducted from the total amount of income, and when it is recognized that certain assets have been used or consumed in the course of contributing to the creation of the total amount of subscription, the monetary value of the amount of use shall be deducted as necessary expenses. In this case, health class and recognized facts in this case, and at the same time, the deposit amount claimed by the Plaintiff as necessary expenses is the amount calculated by calculating interest on the premise that the Plaintiff is the 00 won borrowed money, and the deposit amount is the amount calculated by calculating interest on the premise that the Plaintiff is the 00 won received from the fixedCC, and it is difficult to regard the above deposit amount as the expenses used or consumed by the Plaintiff for receiving penalty from the total amount of income, and it is difficult for the Plaintiff

3. Conclusion

If so, the plaintiff's claim of this case is accepted within the above scope of recognition, while the plaintiff's claim of this case is dismissed as it is without merit, and it is judged like the order.