Cho High Court Decision 2008Du2701 (Law No. 2009.04.07)

It cannot be deemed that there was a confirmation of the right to income solely on the basis of the attorney’s fee agreement

It cannot be deemed that the establishment of a right to income was made on the sole basis of an agreement on attorney’s fees, and the specific nature, content, and substance of the specific right, various legal conditions, and changes in the occurrence of rights after the agreement on attorney’s fees was concluded. It is reasonable to deem that there was a verbal agreement to postpone the payment period

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

1. On April 3, 2008, the director of the tax office of B/L revoke 784,549,130 won of global income tax for the year 2004, and 317,517,630 won of global income tax for the year 2005, respectively, and the director of the tax office of e/L in e/L shall revoke the value-added tax for the year 2004 against the Plaintiff on April 2, 2008 by the head of the tax office of e/L in e/L for the year 2004 and the value-added tax for the year 7,950,850 won for the year 205, respectively.

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

The same shall apply to the order.

1. Circumstances of the disposition;

A. The plaintiff, while running the attorney-at-law business, has been delegated by the AA Development Co., Ltd. (hereinafter referred to as the "A") located in Japan and has dealt with the claims for loans and other disputes against the SeoulB (hereinafter referred to as the "SeoulB"). In that process, the plaintiff prepared an agreement on the attorney-at-law fees with the AA on July 10, 2002 and November 2, 2002 (hereinafter referred to as the "agreement 1"), respectively, and prepared an agreement on November 2, 2002 (hereinafter referred to as the "agreement 2").

B. The Defendants confirmed in the first agreement that A would pay 2.5% of the principal paid by AB to the Plaintiff as attorney’s fees within one month from the date of repayment according to the result of the said loan lawsuit, and confirmed in the second agreement that the Plaintiff would have agreed to receive additional 200 million UN in addition to the attorney’s fees under the first agreement, and determined that the Plaintiff failed to report the attorney’s fees in accordance with the terms and conditions set forth below.

1) Accordingly, on April 2, 2008, the head of the Si/Gun/autonomous Gu tax office imposed the Plaintiff the value-added tax of KRW 18,122,350 for the first term of 2004 and KRW 7,950,850 for the first term of 2005. The head of the Si/Gun/Gu Tax Office of Bright of Bright of Korea imposed the Plaintiff the global income tax of KRW 784,549,130 for the year 2004 and the global income tax of KRW 317,517,630 for the year 205 (hereinafter collectively referred to as the “instant disposition”).

[Ground of recognition] Unsatisfy, Gap 3, 4, 9-13 evidence, Eul 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The issues of the instant case

The Plaintiff asserted that the payment period under the first and second written agreement was changed to December 31, 2014 between AA and AA, which had been suffering from the financial difficulties at the time of October 2003, and that the payment period under the first and second written agreement was changed to December 31, 2014. As such, the Plaintiff’s assertion that the payment period under the first and second written agreement was attributed to the date when the attorney’s fees were to be paid (or the time when the attorney’s fees were actually received if the payment was actually received before that date). However, the Defendants asserted that the instant disposition was justifiable on the premise that the payment period under the first and second written agreement is deemed to be the time of receipt of business income and the time of supply for services unless the said modified agreement is proved by the same document, etc. as the said written agreement. Accordingly, the key issue of the instant case is whether it is unlawful to regard the payment period under the first and second written agreement as the time of payment for business income and the time of supply

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) AA, a company running a golf course business, has established the company on May 7, 1964, knives knives knives knives knives (the death of October 19, 196) and operated the above company until the time of death as its major shareholder and representative director. The knives knives knives knives established SeoulB on August 22, 1986 to operate a golf course in Korea, and A A obtained loans from financial institutions located in Japan and lent it to SeoulB.

(2) Since the death of leaptable, there was a dispute over the property between the children of the Republic of Korea and Japan, and as at the time, the SeoulB, which had been operated by the leap△△△, did not repay the borrowed funds from A, on March 3, 1998, A filed a lawsuit claiming loans against the SeoulB by appointing the Plaintiff, etc. as the legal representative and claiming payment of the amount of 8,345,80,000,000, with the Suwon District Court (98da5596, May 15, 2001). At the first instance of the above lawsuit, AA won on May 15, 2001, from the appellate court (Seoul High Court 2001Na491444) to the Seoul High Court 6.5 billion won on October 31, 2002, Seoul paid the amount to the 6.5 billion won amount to the 6.5 billion amount to be paid by adding the interest to the 6.5 billion amount to 3 billion.5 billion.5 billion.5 billion.

(3) On the other hand, as the above loan claim lawsuit was long-term, specific agreements on the Plaintiff’s attorney fees were made on July 10, 2002. The contents of the first agreement are as follows.

* 1 Agreement

(1) AA shall pay to the Plaintiff 2.5% of the principal paid by AA from Seoul High Court 2001Na49144, as a result of the loan case No. 2001Na49144, as attorney fees, to the Plaintiff.

(2) The due date shall be within one month of each principal repaid by AB from the SeoulB.

(4) On November 2, 2002, the Plaintiff and AA entered into a second agreement with SeoulB to receive additional KRW 200 million in addition to the attorney fees under the first agreement in return for continuing to deal with claims, stock, inheritance, and tax issues with the Plaintiff, etc. In addition to the attorney fees under the first agreement, the following details are as follows.

* 2. Agreement

1. Not more than one month from the date on which AB reaches the 600 million Seoul High Court (Seoul High Court 2001Na 49144), the first installment payment of which is 60 million won, in accordance with the Seoul High Court 2001 or 49144

(2) 50,00 United Nations shall not exceed one month from the date on which a final payment has been made in accordance with the decision-making protocol by a SeoulB.

(5) AA는 서울BB에게 대여한 대여금을 주로 일본의 ◆◆◆◆◆◆◆ 은행으로부터 대출받아 조달하였는데 이를 상환하지 못하자, 위 은행은 2003. 9. 16. AA에 대한 약 80억 엔의 채권을 불량채권으로 분류하여 골드만삭스의 계열사인 □□□□ 리미티드(이하 '□□□□'라고 한다)에 양도하였다. 이에 따라 AA는 □□□□로부터 그 채권액 전액을 즉시 변제하도록 압박을 받게 되었고, 채무액 조정 및 변제계획에 대한 교섭을 진행하게 되었다.

(6) On the other hand, AA, which was sealed in the financial crisis due to the pressure of △△’s repayment and the depression of the golf course industry at the time of the above repayment, was difficult to pay the Plaintiff’s attorney fees at the time of payment pursuant to Articles 1 and 2, and requested the Plaintiff to delay the time of payment of the attorney’s fees by not later than the end of October 2014, which is anticipated to have been repaid in installments according to the instant conciliation decision. The Plaintiff accepted the request of AA, taking into account the client’s trust relationship formed over a long-term period of time and the financial standing of AA, etc.: Provided, That the Plaintiff did not prepare in writing a written agreement on the change of the said payment time.

(7) After that, on May 14, 2004, △△△ requested a provisional attachment of 5.9 billion UN and transfer of the above claims, among the claims under the instant conciliation order against the SeoulB by △△ on May 14, 2004, which have not been repaid until then. AA demanded the Plaintiff to file an application for provisional attachment of the above claims with the purpose of preventing the unilateral acquisition of claims by △△△△, thereby in favor of negotiating the repayment with △△△, by preventing the unilateral acquisition of claims by △△△△. Accordingly, on July 22, 2004, the Plaintiff provisionally seized the above claims with its own remuneration claim as the preserved right.

(8) On December 2004, AA agreed to transfer claims against SeoulB pursuant to the instant conciliation decision to △△ for the early repayment of claims against △△ (hereinafter referred to as the “instant agreement”). In addition, upon the instant agreement, AA’s cancellation of the provisional seizure against the Plaintiff’s above claims, the Plaintiff released the provisional seizure at AA’s request.

(9) As a lawyer fee from AA to March 31, 200B, the Plaintiff received 94,500,000 UN Do 156,207,794 Do Do 157,794 Do Do Do 156,207,794 from May 2008 to September 15, 200B. The Plaintiff agreed with A Do Do 329,707,794 Do Do Do 156,209 during the litigation of this case as follows. Under this agreement, the Plaintiff received 79,00,000 UN Do 329,707,794 Do Do 1329,794 from August 28, 2009 as the remainder of the attorney’s fees. Accordingly, the Plaintiff received the attorney’s fees from A Do 2009,707,794 UN

* Contents of the Agreement dated June 15, 2009

① With respect to the balance of attorney’s fees that AA is to pay to the Plaintiff by the end of June 2014, A and the Plaintiff shall promptly adjust the balance of attorney’s fees and terminate all obligations, taking into account all circumstances, including the fact that the Plaintiff’s receipt of the last balance 1,716,394,953 from SeoulB on June 30, 2009 from the SeoulB to the Plaintiff remains.

② AA shall pay the Plaintiff KRW 79 million by August 28, 2009.

[Ground of recognition] Facts without dispute, entry of Gap 1-8, 14-20 evidence, the purport of the whole pleadings

D. Determination

(1) Even if the Income Tax Act adopts the so-called principle of accrual as to the time when income is determined, the right to receive income should be determined and confirmed considerably high in light of its feasibility, so it cannot be deemed that there was the confirmation of income right based only on the initial attorney’s fee agreement. The specific nature and content of the right, factual and various legal conditions, and changes in the creation of rights after the said agreement should be comprehensively considered (see, e.g., Supreme Court Decision 76Nu25, Dec. 27, 197).

(2) In light of the following circumstances, it is reasonable to deem that there was a verbal agreement (hereinafter referred to as “instant modified agreement”) with the Plaintiff and AA company around October 2003, to postpone the time of payment of attorney fees by December 31, 2014, as seen earlier.

(A) At the time of the instant amendment agreement, AA had a claim of 6.5 billion UN by the instant mediation decision against SeoulB, but among them, 600 million UN was paid in installments on December 31, 2003, and the remaining principal and interest were paid in installments each year from 50 million to 2014 to 2015, and thus was faced with a serious liquidity crisis. Accordingly, AA, which was sealed in the financial crisis, was difficult for the Plaintiff to pay the attorney’s fees to the Plaintiff at the time of payment under the first and second agreements, and was required to request the Plaintiff to delay the time of payment of the attorney’s fees.

(B) The attorney’s duties are premised on the high level of trust with the client. In the case of the Plaintiff and AA, the Plaintiff, in particular, was not delegated only one time by the Plaintiff to the SeoulB, but has formed a trust relationship with the SeoulB by continuing consultation on claims, stocks, inheritance, and tax issues, etc. Accordingly, the Plaintiff appears to have accepted the request of AA to postpone the due date for payment of attorney’s fees based on such trust relationship.

(C) Although the instant amendment agreement was not written, it was unilaterally favorable to AA, a debtor, as it was the content of suspending the period of maturity of attorney fees. Therefore, there was no reason for the Plaintiff to request AA to make a written statement of the instant amendment agreement, and even from the perspective of AA requesting the deferment of maturity, it seems that the Plaintiff did not have to demand a written statement of the instant amendment agreement.

(D) Meanwhile, inasmuch as a claim is established, even if the time limit has not yet arrived, it is also the right to be preserved for provisional seizure. As such, the Plaintiff appears to have attached claims against the SeoulB of AA by using the attorney’s fee claim under the first and second agreements as the preserved right in a relatively simple statement, and both provisional seizure and its cancellation were made at the request of AA. In addition, even if the amount of remuneration under the agreement was not paid normally at the time of payment of remuneration under the first and second agreements of this case, the Plaintiff would have responded to the measure of rescission of provisional seizure without any particular objection.

(E) In accordance with the First and Second Agreements, remuneration to be received by the Plaintiff from A prior to the instant disposition is equivalent to 251,822,793 UN [=(600,000,00 + 263,203,203,904N + 3,209,707,855N) + 2.5% + 150,000,000, and less than 1N], but the actual amount of attorney’s fees to be received by the Plaintiff prior to the instant disposition is merely 94,50,000 UN. Nevertheless, there is no evidence to acknowledge that the Plaintiff requested the performance of the claim for remuneration to A before the instant disposition or otherwise received the claim for payment from the Plaintiff before the date of the instant disposition (as seen in the foregoing, the Plaintiff only received the final amount of remuneration from the Plaintiff to the 2005,709,700,798,298,600, 2908, 2906, 2008, 196, etc.

(3) Therefore, without recognizing the content of the instant modified agreement, the instant disposition was unlawful on the premise that the timing for payment of attorney fees under the first and second written agreement is regarded as the time of receipt of business income and the time of supply of services.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified, and it is so decided as per Disposition with the assent of all.