Supreme Court Decision 2013Du6718 (No. 13, 2013)

Whether there is a cause for impossibility of recovery shall be determined based on the time of final return, decision, or correction.

(As in the judgment of the court of the third instance, the occurrence of the cause for impossibility of recovery is determined as of the time of final return, decision, or correction. The occurrence of the cause for impossibility of recovery occurred at the time of the instant disposition, and it is difficult to see that it is realized since the collection interest

Article 39 of the Income Tax Act

Seoul High Court 2013Nu28079 Revocation of Disposition of Imposing global income tax, etc.

○ Kim

○ Head of tax office

Seoul Administrative Court Decision 201Guhap7632 decided June 1, 2012

March 19, 2014

April 9, 2014

1. The part of the judgment of the court of first instance regarding the failure of plaintiff shall be revoked.

2. According to the expansion of the purport of the claim in a party trial, the part exceeding 3 XX of global income tax for 200X.X. X. XX of the corrective imposition disposition for the Plaintiff in 2005, the part exceeding 1 XX, the wage class, the wage class, the wage class, the wage class, and the global income tax for 2006, the amount exceeding 9X, the wage class, the wage class, the wage class, the wage class, the wage class, the wage class, the wage class, the wage class, the wage class, the wage class, the wage class, the wage class, the wage class, the wage class, and the wage class,

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim, purport of appeal and scope of trial of this court

1. Purport of claim

"The plaintiff filed a claim for the cancellation of the part of education tax (the stated amount in the column of the amount imposed on the correction on March 4, 2005, the quarter of 4/4th quarter, and 1/4th quarter of 2006, in addition to the above claim, stated in attached Table 1 [Attachment 1] against the defendant on March 19, 2009, and the remainder in the first half of 2006, and the stated amount in the initial amount imposed on the first half of 1.). The judgment of the first instance becomes final and conclusive as follows, and the plaintiff extended the purport of the appeal against the portion of global income tax in this court."

A. The plaintiff

The Defendant’s disposition of global income tax 3 XX for the Plaintiff 200 X. X. X. 205, the part exceeding the 1 XX, the 1st of the 2005 correction department, the 1st of the 2005 correction department, the 2 XX of the 2006, the 1st of the 2006 global income tax, the 2nd of the 2006, the 1st of the 2nd of the 2006, the 1st of the 2nd of the 2006, the 2nd of the

B. Defendant

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

3. Scope of the judgment of this court.

"The plaintiff's global income tax for 200 X. X. X. 205 for the plaintiff 2005, 1 XX, 1 XX, 2006 for the correction and imposition of the 2005 for the plaintiff, and 206 for the global income tax for 2006, 1 XX, 3 XX, 1, 2006 for the correction and imposition of the 2006 for the 2007, 4, 2007 for the global income tax, 9X, 4, 3, 4, 4/4, 206, 1/4, 2005 for the plaintiff. The plaintiff's appeal was reversed by the court of first instance, and the plaintiff's appeal was reversed and remanded to the court of first instance for the plaintiff's revocation of the plaintiff's appeal. The plaintiff's appeal was dismissed. The plaintiff's appeal was dismissed by the court of first instance.

1. Details of the disposition;

A. While the director of the Regional Tax Office of Mandong had conducted a tax investigation of corporate tax on the Mandong Ginseng Plant Co., Ltd. (hereinafter referred to as the “Malsan Ginseng”), the director of the Regional Tax Office confirmed the fact that the Mandong Ginseng paid the interest of the bonds to the Plaintiff, and conducted a tax investigation on the Plaintiff around 200 X. Around 200. As a result, the director of the Regional Tax Office identified and notified the Defendant of the result of the tax investigation as follows.

B. The defendant included the above amount in the plaintiff's total income by the pertinent taxable year, and imposed tax and education tax on the plaintiff as stated in attached Table 1 [Attachment 1] 1]. The plaintiff dissatisfied with each of the above dispositions and filed an appeal with the Tax Tribunal on X. X. X. 200, the Tax Tribunal decided to exclude the plaintiff from the non-business profit and correct the tax base and tax amount by excluding the 8X, capital gains, capital gains, 80, capital gains, capital gains, and capital gains, and the remaining claims are dismissed. D. According to the above decision, the defendant asserted that the correction of the tax amount and tax amount of the plaintiff's tax for global income for 2000 X. X. 206, global income tax for 2005, 2006, and 3/4/404, 2005, and 14/100 of the total tax amount for 200, and the correction of the tax amount for 1st quarter after the second quarter of this case.

1) Claims regarding the payment fee of △ Ginseng

The Plaintiff lent KRW 100 million to △ Ginseng three times, and the representative director of △△ Ginseng, who introduced the Plaintiff to △△△△△, paid a total of KRW 1 XX, e.g., a job placement fee to △△△, and a job placement fee to △△△. The Defendant imposed the full amount of the above fees on the Plaintiff’s revenue, but imposed it only on 4X, a job placement, and a job placement fee to the Plaintiff, according to the decision of the Tax Tribunal. The introduction fee belongs to the Plaintiff, not the Plaintiff, and should be excluded from the Plaintiff’s revenue

2) Claims regarding the realization of interest income

Of the money paid to the Plaintiff by △△△△, 200X. XX. 9X, the wage-making, the wage-making, X. 6X, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, and the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the wage-making, the

In addition, △△△ decided to set up a collateral with the maximum debt amount of KRW 600 million on the real estate owned by Seocho Ginseng, which was the non-payment interest of X. X. X. X. X., and the principal amount of KRW 600 million, and to not pay interest thereon. However, since the above real estate had already been subject to a senior mortgage and the successful bid price falls short of the secured debt amount of the senior mortgage, the Plaintiff was not able to fully repay the principal amount. Since the above converted amount of principal cannot be deemed as the Plaintiff’s income, it is unlawful for the Plaintiff to take the instant disposition by deeming that the Plaintiff realized the interest income even if the Plaintiff did not realize the interest income of the loan to △ Ginseng.

B. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

C. Determination

1) Determination on the assertion regarding the payment fee of △ ginseng

A) Facts of recognition

(1) The Plaintiff borrowed from the Plaintiff 200X X. X. X. 200, and X. XX. 3% of the interest monthly. In fact, from among the above amounts, the Plaintiff was paid only the remainder of the fee of 7X, 100, 2000 X. X. X. 200, and 200 X. XX. X. 3% of the interest monthly. Of the above amounts, the Plaintiff was given 7X, 10% of the fee of 200 X, 20, 200, 2000, and 50% of the fee of 10,000,000, and 3% of the fee of 50,000,0000,000,000,000,000,000,000,000,000,000,000,000 won.

(2) The representative of Dosan Ginseng sent to the Plaintiff a certificate of content indicating the status of the loan and the details of payment of interest to the Plaintiff on X. X. and X.X. 200X., and it stated that Dosan Ginseng will pay the money to the Plaintiff on a successive basis from the accrued interest as of the date of the payment of the money.

(3) In order to secure the funds borrowed from the Plaintiff, △ Ginseng completed the registration of the establishment of a neighboring real estate, including the 11st unit of real estate, including the Do-ri Special Metropolitan City, Do-ri Special Metropolitan City, Do-ri Special Metropolitan City, Do-ri Special Metropolitan City, Do-ri Special Metropolitan City, Do-ri Special Metropolitan City, Do-ri. However, among them, X. X., 200 X. intended to convert the amount of collateral security, 6 XX, and

(4) On the other hand, the plaintiff stated that "the principal of the loan to △ Ginseng is KRW 1.5 billion", "No. 1, No. 2 through 6, No. 8, and No. 9 (including the serial number)", and the purport of the whole pleadings, as to "the request (1) for the funds lending supporting materials requested by the director of the Regional Tax Office at the time of the tax investigation."

B) Determination

In light of the following circumstances, i.e., ① the Plaintiff’s statement that 70 billion won was divided into 3 capital, i.e., fee 7X, and 20 billion won; ② the Plaintiff attempted to relet 500 million won, but the Plaintiff paid the fee to 50 million won, and there is no clear whether the Plaintiff paid the fee to 20 billion won even if 20 billion won to 30 billion won, and 30 billion won was paid to 20 billion won. The Plaintiff’s statement that 40 billion won was paid to 30 billion won, and 30 billion won was paid to 20 billion won. The Plaintiff’s statement that 40 billion won was paid to 30 billion won, and the Plaintiff did not introduce the content of 40 billion won to 30 billion won, including the content of 40 billion won, and the Plaintiff’s statement that 200 billion won was paid to 30 billion won, and the Plaintiff did not present the content of 30 billion won.

2) Determination on the assertion on the realization of interest income

A) Facts of recognition

위 각 증거들 및 변론 전체의 취지를 종합하면，① □□인삼은 200X. XX. XX. 당좌거래가 정지되었고, 200X. X. XX. 그 보유자산에 대한 경매가 개시되었으며, 이 사건 각 처분 직후인 200X. X. XX. 영주세무서장에 의하여 직권으로 폐업된 사실, ② □□인삼이나 조◇◇은 법인운영자금 부족으로 인하여 원고 이외에도 200X. XX. XX. 채권자 이DD(채권최고액 5억 원), 200X. X. X. 채권자 이FF(채권최고액 6억 500만 원)，200X. X. X. 채권자 주식회사 ◎◎상호저축은행(채권최고액 21억 원)으로부터 돈을 차용하였을 뿐만 아니라, 200X. X.부터는 원고에게 전혀 원리금을 변제하지 못하였던 사실, ③ 이 사건 각 부동산 중 □□인삼 소유의 영주시 ☆☆읍 ☆☆리 4XX-X，4XX-X 토지 및 그 지상건물 등 8건의 부동산에 관하여는 원고가 최선순위 근저당권자이지만 대구지방 법원 안동지원 2008타경2688, 6567(병합) 임의경매절차에서 매각된 대금은 합계 8XX,XXX,XXX원에 불과하고, 나머지 영주시 ★★읍 ★★리 1XX-X, XXX-X 및 1XX-X 토지 등 3건의 부동산 매각대금은 합계 3XX,XXX,XXX원인데 원고의 근저당권보다 선순위의 권리자가 존재하였으며, 그 결과 원고는 200X. XX. XX. 전체 매각대금에서 9억여 원밖에 배당받지 못하였던 사실, ④ 조◇◇은 201X. XX. 대구교도소에 수감되어 있다가 출소한 이후 그 소재가 분명하지 아니한 사실을 인정할 수 있다.

B) Determination

(1) Article 39(1) of the former Enforcement Decree of the Income Tax Act (amended by Act No. 9897, Dec. 31, 200; hereinafter the same shall apply) provides that the total amount of interest income and necessary expenses of a resident for each year shall be the year including the date when the amount of gross income and the necessary expenses are determined. Article 39(4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same shall apply) provides that if interest income and the amount of interest income cannot be determined separately from the total amount of interest income and the amount of interest income under Article 50 of the former Enforcement Decree of the Income Tax Act cannot be determined on the grounds that the former Enforcement Decree of the Income Tax Act’s final return on the tax base and the amount of interest income and the amount of interest income that cannot be recovered from the total amount of interest income and the amount of interest income that cannot be recovered under Article 51(7) of the former Enforcement Decree of the Income Tax Act, such determination shall be made on the first.

(3) On the instant case, even if based on X. X. 200, which was at the time of the instant disposition, the Plaintiff’s loan principal and interest on the instant case were deemed to have never existed. Thus, it shall be deemed that the Plaintiff’s loan claim was objectively obvious that the Plaintiff could not recover the entire amount at the time of each of the instant dispositions. In this case, the Plaintiff’s total interest collected by the Plaintiff at the time of each of the instant dispositions, including the Plaintiff’s loan principal and interest on the instant case: (i) the amount of interest collected by the Plaintiff; (ii) the commercial class, the commercial class, the commercial class, the commercial class, the commercial class, the commercial class, the commercial class, the commercial class, the commercial class, the commercial class, the commercial class, the commercial class, the commercial class, the commercial class, and the commercial class, the principal and interest on the Plaintiff’s loan amount to KRW 1.5 billion; and (iii) the principal and interest income on the Plaintiff’s loan amount to KRW 2005, 2006 and 207.

(4) Therefore, the Plaintiff’s assertion on this is with merit.

3) The scope of revocation of the instant disposition

With respect to the scope to be revoked during the instant disposition, the Plaintiff’s global income tax amount related to the Plaintiff’s loans in the instant disposition shall be determined as follows: “The amount of increase or decrease in the total amount of global income tax for the purpose of 2005, 1 XX, 1 XX, 1, 2006, 2006, 4, 2007, 4, 2007, 3:00, 3:00, 2000, 2005, 1:0,000, 2:00, 2:00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00.

Therefore, the claim of this case extended by the plaintiff in the trial of the court with respect to the claim for cancellation of global income tax, which is the scope of the judgment of this court, shall be accepted, and the judgment of the court of first instance is unfair and it is so decided as per Disposition by accepting the plaintiff's appeal.