Seoul Administrative Court 2012Guhap32154 ( December 27, 2013)

Since the amount received by the Plaintiff constitutes interest income on the loaned money, the disposition of this case is legitimate.

The disposition of this case, which was received by the plaintiff to the non-party two times after the plaintiff lent money to the non-party, is obviously unlawful since it constitutes interest income.

Article 51 of the Enforcement Decree of Income Tax Act

2014Guhap1741 Global income and revocation of disposition

IsaA

head of Dongjak-gu Tax Office

June 12, 2014

July 17, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The imposition of global income tax of KRW 000 on the Plaintiff on June 18, 2012 shall be revoked in 2009.

1. Details of the disposition;

A. On April 12, 2004, the Plaintiff paid 00 won, 2.5% per annum (3.5% per annum) and 12 months from the date of borrowing the due date (hereinafter “the first loan”) to Nonparty A after deducting the interest on one-month interest. At the time of the said credit, the Plaintiff was divided into 1,456m2 (23-28m20 on May 3, 2004) prior to the division under the name of BB prior to the division, 23m23m23-2 and 728m2 of the same Ri, and again divided 23-3m29m2 on March 29, 2010 into 30m2, 200, 200m23-4m2 and 30m20m2 and 30m2.

B. On October 22, 2004, the Plaintiff, upon setting 2.8% (3.8% per annum) interest rate of 00 won, paid 00 won after deducting the interest rate for one month. At the time of the security of the second rental loan claim, the Plaintiff completed the registration of establishment of a mortgage (hereinafter referred to as the “registration of establishment of a mortgage on the second rental loan”) around October 21, 2004 with respect to the OOOO-dong 8-11, 153 square meters and its ground buildings (hereinafter referred to as “OO-dong real estate”) that were registered in the name of KimA as at the time of the security of the second rental loan claim.

C. However, thisA did not pay interest on the first loan from December 12, 2004 for the second loan, and from January 22, 2005 for the second loan from January 22, 2005 for the second loan.

D. The Plaintiff filed an application for voluntary auction on the O-ri land at around September 2007 upon the registration of the establishment of the first place of the establishment of the creation of the creation of the O-ri land around September 2007, and accordingly, the decision to commence the auction was rendered on October 15, 2007 by O-O District Court No. 2007, 17690.

E. The principal and interest of the loan 1 as of January 7, 2009 were OOwon 1). On January 7, 2009, A repaid 000 won to the Plaintiff (i.e., KRW 000 out of the loan 1 + auction cost of KRW 000, hereinafter “the instant payment”). Accordingly, the Plaintiff withdrawn the application for auction on January 8, 2009, and simultaneously cancelled the registration of establishment of the first class.

F. On the other hand, on January 6, 2009, thisA made a provisional registration of the right to claim a transfer of ownership (hereinafter referred to as the "provisional registration of this case") with respect to each of the land of this case on the 7th of the same month as the maximum debt amount, the debtor's establishment registration of a neighboring mortgage (hereinafter referred to as "the third neighboring mortgage registration"), the debtor's establishment registration of a neighboring mortgage (hereinafter referred to as "the establishment registration of a neighboring mortgage"), and on the 8th of the same month, with respect to each of the land of this case on the same day.

G. On June 8, 2012, the Defendant deemed that the instant payment constituted interest on a loan, and rendered a disposition imposing global income tax of KRW 000 on the Plaintiff (hereinafter “instant disposition”).

H. On September 17, 2012, the Plaintiff filed an appeal with the Tax Tribunal on September 17, 2012. On October 17, 2013, the Tax Tribunal decided to impose a tax amount of KRW 100 million excluding KRW 14.7 million out of the instant payment, as interest income. According to the decision of the Tax Tribunal, the Defendant imposed a tax amount of KRW 493,959,360 [1] 49,959,360 [20,000 per principal + (20,000,0000 per annum 200,000,000 per annum x 2.5% per annum x 2.5% per annum x 2.5% per annum x 200,000 per annum x 2.36% per annum 20,000 per annum x 2.35% per annum x 2035 months per annum 204 x 30.35 months per annum 230314.203 months per annum

I. The Plaintiff still appealed and filed the instant lawsuit on January 17, 2014.

[Ground for Recognition: Facts without dispute, Gap evidence 1, 2, 4, Eul evidence 1 to 6, the purport of the whole pleadings]

2. The assertion and judgment

A. The plaintiff's assertion

1) The assertion that interest income is not an interest income

The payment of this case is not received as a full title of interest but received as the principal of the loan to thisA. Nevertheless, the defendant recognized it as an interest income and issued the disposition of this case in violation of the law.

2) The assertion that loans are not collectible

Even if the payment of this case is understood as interest, since the Plaintiff’s claim for each of the instant loans against EA was impossible to collect prior to the disposition of this case, it cannot be viewed as taxable income pursuant to Article 51(7) of the Enforcement Decree of the Income Tax Act.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Determination as to the assertion that interest income is not an interest income

In full view of the following circumstances that can be recognized by adding the background of the above disposition and the purport of the entire pleadings, it is reasonable to view that the Plaintiff and thisA have agreed to cover the first loan obligation at the time of the payment of the instant payment, and that the Plaintiff and thisA agreed to cover the expenses, the OO00 won, and the remainder of the OO0 won in the principal, and the interest.

The plaintiff filed an application for voluntary auction on the OOri land on September 2007 by the first place of registration of the establishment of the first place of the establishment, and accordingly, the decision to commence auction was issued by the OO District Court 2007 other or 17690.

On January 7, 2009, P.A. paid the instant payment to the Plaintiff on January 7, 2009, around that time, P.A. completed the registration of the establishment of the instant neighboring land, the provisional registration of the instant security (hereinafter “the instant establishment registration, etc.”) and the third establishment registration of the establishment of the O-dong real estate. On the contrary, the Plaintiff withdrawn the said voluntary auction application and cancelled the registration of the establishment of the first neighboring real estate.

The appraisal value of the above land was limited to KRW 000. At that time, the appraisal value of the above land was limited to KRW 000,000. At that time, since the right to collateral security and superficies was established, which are the maximum debt amount of the listed credit union name, prior to the Plaintiff’s first priority over the creation registration of the mortgage, the Defendant could recover only approximately KRW 000 if the above auction procedure is in progress. At that time, there was no particular property to the AO.

On January 7, 2009, thisA prepared a loan certificate stating that it borrowed KRW 000 from the Plaintiff at interest rate of KRW 3% (4% per annum) and for seven months from the date of repayment from the date of loan (hereinafter “the loan certificate of this case”). Thereafter, the registration of the establishment of the mortgage of this case was completed with respect to each of the land of this case, and thisA revoked all of the registration of the establishment of the establishment of the OO credit union and the registration of the establishment of superficies in the name of the OO credit union, the top priority collective security right of March 30, 201, and thereby, thisA took the top priority in the registration of the establishment of the mortgage of this case.

Therefore, considering that the Plaintiff’s disposal of the instant loan 1 and the instant loan 1 and the instant loan 1 and the amount equivalent to 1.5 times the maximum debt amount (00 won, 200 won) with respect to the instant loan 1 and the instant loan 1 and the instant loan 1 and the instant loan 2 were set up on January 7, 209, with the exception of the maximum debt amount of the instant loan 1 and the amount of the instant loan 1 and the amount of the instant loan 200 won out of the loan 1 and the amount of the remainder of the loan 1 and the amount of the instant loan 200 won out of the remainder of the loan 1 and the amount of the instant loan 200 won out of the loan 1 and the amount of the remainder of the loan 1 and the remainder of the loan 200 won out of the amount of the loan 1 and the remainder of the loan 200 won out of the loan 1 and the Plaintiff had not agreed on the remainder of the loan 200 won.

2) The assertion that loans are not collectible

Articles 51(7), 55(1)1, and 55(2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter “Enforcement Decree of the Income Tax Act”) provide that the interest income shall be calculated by deducting the principal of the non-business loan from the amount already recovered, only if the relevant non-business loan amount becomes “a claim which cannot be recovered due to the debtor’s bankruptcy, compulsory execution, execution of punishment, or the discontinuation of business due to the debtor’s death, disappearance, missing, etc.” or “a claim which cannot be recovered due to the debtor’s death, disappearance, etc.” or “a claim which cannot be recovered due to the debtor’s death, disappearance, etc.” as to the non-business loan amount which is one of the interest income before the disposition in this case is made. However, there is no assertion or proof as to the existence of the above reasons as prescribed by the Enforcement Decree of the Income Tax Act, and thus, the plaintiff’s assertion cannot be accepted.

3. Conclusion

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