Suwon District Court 2013Guhap2793 ( October 24, 2013)

early 2012 Middle 4603 ( December 28, 2012)

It is reasonable to view that an agreement to settle at the time of sale was specified as the payment date of interest.

Although the date of payment of interest is not specified, it is reasonable to view that the interest is settled when the period of loan expires due to the sale of land as the date of payment of interest, and it is reasonable to deem that the agreed terms and conditions at the time of sale are specified in the agreement to the extent that it can be known that the interest income is attributed to a certain taxable period.

2013Nu5052 Global income and revocation of disposition

○ Kim

The superintendent of the tax office

Suwon District Court Decision 2013Guhap2793 Decided October 24, 2013

June 25, 2014

July 9, 2014

1. The plaintiff's appeal is dismissed.

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

1. Details of the disposition;

A. On February 19, 2008, the Plaintiff received dividends of KRW 1,000,000 (hereinafter referred to as “instant dispute”) from the debtor and the mortgagee in the Daegu District Court on the auction case of real estate rent of KRW 196-4 and KRW 949,00 in ○○○○○○○○○, ○○-dong, 196-1, 3920 square meters (hereinafter referred to as “each of the instant lands”) around 2007, around 1680 (hereinafter referred to as “instant auction case”), among the maximum debt amount of KRW △△△,00,000 (the sum of principal △△△△,00,000, the sum of interest, KRW △△,000,000).

B. On September 7, 2012, the Defendant deemed that the remaining KRW △△△△△,00,000 after deducting the total principal amount from the dividends at issue as interest income accrued in 2008, and that the Defendant corrected and notified the Plaintiff on September 7, 2012, global income tax amounting to 2008, global income tax amounting to △△△,594,940 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on October 17, 2012, and the said appeal was dismissed on December 28, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 9, Eul evidence Nos. 1 and 2 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

The reasoning of this part of the judgment is the same as that of the judgment of the court of first instance, and therefore, the corresponding part of the judgment of the court of first instance is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

A. The height part

The provisions under the end of the relevant Acts and subordinate statutes shall be added to 3 b.

Article 51 (Calculation of Gross Amount of Income)

(7) In calculating the gross income from the profits accruing from a nonbusiness loan under Article 16 (1) 12 of the Act, if the whole or part of the principal and interest are irrecoverable from the debtor or a third party because the relevant non-business loan falls under the bonds stipulated in Article 55 (2) 1 or 2 before the final return on tax base under Article 70 of the Act or the determination or correction of tax base and tax amount under Article 80 of the Act, the calculation shall be made by preferentially subtracting the principal from the recovered amount. In this case, if such recovered amount is short of the principal, the gross

◇4쪽 아래에서 6째 줄 '4/7분'을 '4/7 지분'으로 고친다.

◇5쪽 아래에서 7째 줄 '안○○은'을 '안○○에 대하여는'으로 고친다.

◇6쪽 아래에서 1, 2째 줄 '이 법원의 대구지방법원에 대한 문서송부촉탁결과'를

Round.

◇7쪽 아래에서 5째 줄 다음에 '원고가 내세우는 사정만으로는 이 사건 처분이

It cannot be viewed as a violation of the principle of substantial taxation."

B. Additional determination

(1) As to whether the distribution schedule was corrected on February 19, 2008

In light of the following circumstances, the evidence of the first instance judgment, and the statements of Gap evidence Nos. 10 through 12, and the fact inquiry results with respect to the Daegu District Court of this Court, it is merely merely that the distribution table of February 19, 2008 was substantially corrected by the above judgment or the entrustment of payment by the execution court, after making an agreement between the plaintiff et al. and the plaintiff et al. to receive the claim for indemnity pursuant to the Daegu High Court Decision No. 2008Na1090, Jul. 9, 2009; and it is difficult to view that the distribution schedule of February 19, 2008 was substantially corrected by the above judgment or the entrustment of payment by the execution court.

The plaintiff's assertion in this part is not acceptable.

① The amount of dividends on the third right to collateral security as deposited by the Plaintiff was KRW 1,454,306 (the dividend of the dispute and KRW 454,306 from the date of distribution to the date of deposit) and deposited the cause of deposit as “a proof of filing a lawsuit of demurrer against distribution within a fixed period of time on the date of distribution by Park○○, Gam○, and the person holding the right to provisional seizure, and a certificate of filing a lawsuit of demurrer against distribution within the fixed period, Park○, Gam○, and Kim○-○, Daegu District Court 2008Kadan1258, 1258.”

② Gamb○ and Gamb○○ filed on June 11, 2008 a lawsuit of demurrer against distribution ( Daegu District Court 2008Gahap2016)

After changing the purport and cause of the claim from the Daegu District Court to the claim amount, it received a provisional seizure order (Tgu District Court 2008Kahap327) against the plaintiff's claim for payment of the deposit money, and received a seizure and collection order (Tgu District Court 2009TTTTT 96).

③ On June 12, 2009, Park ○ and Park ○○○ case (Tgu High Court 2008Na10090)

After a favorable judgment was rendered on July 9, 2009, the Plaintiff and Ansan-○ entered into an agreement with the Plaintiff on the distribution rate (the Plaintiff, Gab○○, and Gab○○ 3:1, respectively) of the dividends in question, which read, “ Park○ and Gab○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

(4) Accordingly, Park○-○ and Park ○-○○ may collect claims and pay dividends on issues around July 10, 2009.

After requesting the provisional disposition of prohibition of disposal, provisional disposition of seizure of claim, and cancellation of execution of collection order, the reason for deposit ceased to exist, part of the deposit money was paid according to the above distribution ratio (the dividend and interest thereof).

(2) Date of receipt of interest income

Article 45 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009)

As to the receipt date of interest income by type of interest income, subparagraph 9-2 of the same Article provides that the date of payment of interest income, which is a profit from a non-business loan, shall be the date of payment of the interest income, if any, and the date of payment of the interest income if there is no agreement on the date of payment of the interest income. Since income tax is a so-called "fixed-term taxation" that imposes tax on the income for one year from January 1 to December 31 of each year, it is necessary to specify the receipt date of the interest income in order to impose the interest income accrued from a non-business loan on the global income tax base. In light of such fact, in order to regard the receipt date of the interest income as the "date of payment of interest under an agreement" under Article 45 subparagraph 9-2 of the Enforcement Decree of the same Act as the "date of payment of interest income under an agreement", the payment date of the interest income under such agreement shall be specified to the extent that it can be identified in a certain taxable period (see Supreme Court Decision 2008Du6875, Mar.

According to the above facts, although each loan certificate as of December 10, 200 and December 10, 2004 does not specify the interest payment date, it is not deemed that there was a special circumstance to determine the interest payment date of the loan as of December 10, 2002 and December 10, 2004 differently from the loan as of December 10, 2003 and December 10, 2005, and other circumstances in the first instance trial, the receipt date of interest income related to the loan to Ansan ○○ is the time of sale of each land of this case. Thus, it is reasonable to view that the receipt date is the time of sale of each land of this case, since the sale of each land of this case was decided in the auction case and the dividend was made on February 19, 2008.

If the payment date of interest under the agreement cannot be deemed to have been specified specifically, the Plaintiff’s interest income receipt date due to the issue pursuant to the proviso of Article 45 subparag. 9-2 of the above Enforcement Decree shall be the date of payment of interest. However, according to the above factual basis, the lawsuit of demurrer against distribution filed by Park○○ and Ge-○○ on June 11, 2008 was changed to the lawsuit claiming the amount of reimbursement on June 11, 2008 and the lawsuit of demurrer against distribution was withdrawn, the lawsuit of demurrer against distribution shall be deemed not to have been pending from the beginning (Article 267(1) of the Civil Procedure Act). Accordingly, the issue dividends were reverted to the Plaintiff on February 19, 208, and the distribution schedule was established as of February 19, 2008, and thus, the withdrawal rate was limited due to the remaining deposit grounds (a provisional disposition prohibiting debt collection and disposal of interest income) and the remaining dividends were all made on July 10, 2009.

On a different premise, the Plaintiff’s assertion cannot be accepted (as otherwise alleged by the Plaintiff, even if the money actually received by the Plaintiff on July 10, 2009 is insufficient to cover all principal and interest of the loan and the money was in insolvent, it is judged that the same applies to the Plaintiff’s assertion.)

3. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.