2012west 3785 (2013.05.06)

The amount equivalent to 10% of the principal of each investment received by the plaintiffs as interest name constitutes interest income in the actual meaning.

Even if the plaintiffs have re-invested the amount including interest for each transaction, each individual contract is separate and independent, and as long as the plaintiffs have been fully paid the principal and interest under each individual contract during the respective taxable periods, and the interest income is fully realized, the amount equivalent to 10% of each investment principal constitutes interest income.

2013Guhap6954 Global income and revocation of disposition

1. GaB 2. GaB 3.CC 4.ND 5.E 6.F

1. 2. HH Head of the GG Tax Office 3. II

4. J. 5. Cheongf85 KK Head of J. J.

August 23, 2013

September 6, 2013

1. All of the plaintiffs' claims are dismissed.

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

1. On May 21, 2012, the imposition of the global income tax for the year 2010 imposed on Plaintiff KimA and the imposition of the global income tax for the year 2008, the global income tax for the year 2009, the global income tax for the global income tax for the year 2009, and the global income tax for the year 2010 shall be revoked.

2. On May 21, 2012, Defendant HH head of the tax office revoked each disposition of imposition of global income tax for the year 2009 and global income tax for the year 2010, imposed on Plaintiff SCC.

3. On May 12, 2012, Defendant II Head of the Tax Office revoked each disposition of imposition of global income tax OOOO or global income tax OOOOOO for the year 2009, imposed on Plaintiff YangD.

4. On May 23, 2012, the head of the JJ Tax Office revoked each of the dispositions taken by the Plaintiff KimE on global income tax for the year 2009 and the global income tax for the year 2010.

5. On May 24, 2012, the imposition of the global income tax for 2008, global income tax for 2009, global income tax for 2009, and global income tax for 2010 shall be revoked by the head of the tax office of uf85 KK, respectively.

1. Details of the disposition;

A. From 2008 to 2011, the Plaintiffs received a recommendation to “to guarantee the principal of investment and to pay interest equivalent to 10% of the principal within three months,” the Plaintiffs paid 10% interest on the principal and its interest within three months, and repeated the process of paying 10% interest on the principal and its interest within three months from the payment of the principal and interest. Each of the Plaintiffs’ monetary payment was made on a regular basis regardless of the timing of collecting the principal and interest.

B. The annual total amount paid or received by the Plaintiffs from 2008 to 2010 is as follows:

(amount unit: 1,00 won)

Year

Number of Trading Frequency

Total amount of payment

Amount of the general meeting

Total payment interest

KimA

208

2 times

OOO

OOO

OOO

209

4 times

OOO

OOO

OOO

2010

6 times

OOO

OOO

OOO

KimB

208

5 times

OOO

OOO

OOO

209

8 Session

OOO

OOO

OOO

2010

9 Session

OOO

OOO

OOO

SCC

209

8 Session

OOO

OOO

OOO

2010

8 Session

OOO

OOO

OOO

KimE

208

7 times

OOO

OOO

OOO

209

12 times

OOO

OOO

OOO

2010

12 times

OOO

OOO

OOO

F. F

208

6 times

OOO

OOO

OOO

209

11 times

OOO

OOO

OOO

2010

12 times

OOO

OOO

OOO

C. Meanwhile, in November 201, 201, KimL and MaM paid early settlement of the investment principal to the Plaintiffs in 9, 10, and 11, 201, and the sum of 10% of the investment principal that the Plaintiffs received as interest up to that time was offset by the investment principal. As a result, the Plaintiff KimA was unable to receive OOO, Plaintiff KimB from OOO, Plaintiff Kim Do-B, and both DoD from OOOO, Plaintiff Kim E-E, and Plaintiff HoF from OOO.

D. The director of the Seoul Regional Tax Office: (a) conducted a tax investigation with the business year subject to investigation from January 1, 2008 to June 30, 201; and (b) thereafter, (c) the Defendants were required to impose a comprehensive income tax on the Defendants, since the Plaintiffs were 10% of the principal collected from January 1, 2008 to December 31, 201, as the interest income, as the Plaintiffs were 10% of the principal collected with the principal.

Accordingly, the defendants decided and notified the comprehensive income tax to the plaintiffs as follows (hereinafter collectively referred to as the "disposition of this case").

Agency

Date of Disposition

Tax amount imposed and collected by notice (unit: Won)

208

209

2010

guidance.

KimA

GG Head of the tax office

May 21, 2012

OOO

OOO

OOO

OOO

KimB

GG Head of the tax office

May 21, 2012

OOO

OOO

OOO

OOO

SCC

H Head of HH Tax Office

May 21, 2012

OOO

OOO

OOO

OOO

YangD

II Head of the Tax Office

May 21, 2012

OOO

OOO

OOO

OOO

KimE

J Head of J Tax Office

May 23, 2012

OOO

OOO

OOO

OOO

F. F

K Director of the Korean Tax Office

May 24, 2012

OOO

OOO

OOO

OOO

E. The Plaintiffs filed an appeal with the Tax Tribunal on August 17, 2012, but the Tax Tribunal dismissed all the remaining Plaintiffs’ appeals except Plaintiff YangD on December 6, 2012.

[Ground for recognition] A without dispute, Gap evidence 1 through 3, Gap evidence 4-1, 2, 5-1, 2, 3, Gap evidence 6 through 10-2, Gap evidence 1, 2, Eul evidence 12-1, 2, Eul evidence 1, Eul evidence 2 through 5-1, 2, Eul evidence 6-1, 2, 6-2, and Eul evidence 6-3, and the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) The Plaintiffs, KimL and AnmM’s monetary transaction is not a separate contract for each transaction, but a multiple act of receiving money based on a single contract to pay the investment principal and interest by increasing the investment amount. The interest that the Plaintiffs received each time is paid for the purpose of inducing the Plaintiffs to re-investment as part of the lending principal paid, and thus, it cannot be deemed the substantial interest that is subject to taxation under the Income Tax Act.

(2) Article 51(7) of the Enforcement Decree of the Income Tax Act provides that if all or part of the principal and interest cannot be recovered from an obligor or a third party because the pertinent non-business amount falls under the claims pursuant to Article 19-2(1)8 of the Enforcement Decree of the Corporate Tax Act before the final return on the tax base or the determination or correction of the tax base and the amount of tax, the amount recovered shall be calculated by first subtracting the principal from the recovered amount, and if the recovered amount falls short of the principal, the total amount shall be deemed as non-existent. Thus, Defendant HH head of the tax office should have seen the remainder after subtracting the principal from the recovered amount as interest income. However, Defendant HH head of the tax office should have assessed the total amount of KRW 300,000, referring to the sum of the invested principal acquired in 209 and 2010, the total amount of KRW 300,000,

(3) The Plaintiffs, KimL, and AnmM rescinded the agreement on the investment of art works in November 201, and appropriated the amount equivalent to 10% of the investment principal received at the time of restitution to the original state in November 2011. Therefore, as the above contract became retroactively effective, the amount equivalent to 10% of the investment principal acquired by the Plaintiffs was lost its nature as interest.

(4) In addition, the Plaintiffs, on June 12, 2013, expressed their intent to revoke the art investment contract for the KimL and AnmM as it was by deception, and thus, the said contract was lawfully revoked. Therefore, the amount equivalent to 10% of the investment principal acquired by the Plaintiffs was lost its nature as interest.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

(1) The legal nature of the act of giving and receiving money between the plaintiffs, KimL, and AnmM

The following facts revealed: (a) the plaintiffs did not have entered into a basic contract to regulate all monetary transactions with the KimL, AmM, and all of its interests; (b) each of the investment principal and interest during the taxable period was recovered; and (c) the plaintiffs could have enjoyed economic benefits as to the interest they received by lending money periodically regardless of the timing of collecting principal and interest; and (d) it is reasonable to deem that monetary transactions between the plaintiffs and AmM were an independent monetary loan contract for each transaction (the plaintiffs argued that the contract between GaL and AmM is an investment contract, but the legal nature of the contract is a monetary loan contract, in light of the fact that the plaintiffs agreed to pay the principal and 10% interest within three months by guaranteeing the principal and 10% interest (hereinafter referred to as "individual monetary loan contract for each of the periods of taxation between the plaintiffs, KimLL and AmM).

(2) Whether the interest income falls under interest income

(A) Article 45 of the Enforcement Decree of the Income Tax Act provides that interest income under the Income Tax Act refers to profits accruing from non-business loans or other similar income in the nature of the price as a result of the use of money, and Article 45 of the Enforcement Decree of the Income Tax Act provides that the date of the payment of interest under the agreement shall be deemed the date of receipt of interest income from non-business loans, but where no agreement on the payment of interest exists, or where the interest is paid prior to the date of the payment under agreement or the interest

(B) In addition, income tax is the so-called period taxation that imposes tax on the income amount for one year from January 1 to December 31 of each year, and the interest income from non-business loans is calculated as total income amount for the pertinent year. Thus, in a case where a partial recovery of a claim is made and it becomes objectively obvious that it is impossible to recover the remaining claims at the time of recovery of the claim, it shall be deemed that there is no realization of the interest income that satisfies the taxation requirement in the pertinent taxable year, unless the recovered amount falls short of the principal. However, it shall not affect the duty to pay the interest income that has already been specifically realized prior to the occurrence of a cause for recovery (see Supreme Court Decision 2005Du5437, Oct. 28, 2005).

(C) As to the instant case, health class and individual contracts are separate and independent monetary loan contracts. As long as the Plaintiffs received all principal and interest pursuant to an individual contract during each taxable period and realized interest income in a conclusive manner, the circumstance where it becomes impossible to recover the principal of a separate monetary loan contract concluded in 2011 does not affect the obligation to pay interest income already finalized. Therefore, the Plaintiffs’ assertion based on the premise that monetary transaction between the Plaintiffs, KimLL, and AnmM is a single contract is without merit.

(3) Whether Article 51 (7) of the Enforcement Decree of the Income Tax Act is applied

(A) Article 51 (7) of the Enforcement Decree of the Income Tax Act provides for "in calculating the total amount of profits accruing from a non-business loan pursuant to Article 16 (1) 11 of the Act, where the whole or part of the principal and interest cannot be recovered from a debtor or a third party because the amount of a non-business loan falls under a claim which can not be recovered due to the debtor's bankruptcy, compulsory execution, execution, execution of a punishment, discontinuance of a business, death, disappearance, or disappearance before the final return on tax base pursuant to Article 70 of the Act or the determination and correction of tax base and tax amount pursuant to Article 80 of the Act, the calculation shall be made by first subtracting the principal from

The Act stipulates.

(B) However, the above provision is a method of calculating interest income where all or part of the principal and interest cannot be recovered from an obligor or a third party. In this case where the Plaintiffs received full repayment of principal and interest under an individual contract, the Plaintiffs’ assertion that interest income should be calculated by deducting the principal from the collected amount is without merit.

(4) Whether the agreement is rescinded and the deception is revoked.

In light of the fact that the Plaintiffs’ assertion premiseding the validity of the termination of an agreement is without merit, and the testimony of a witness KimL and AmM alone is insufficient to deem that there was an intention of deception to the KimL and AmM at the time of conclusion of an individual contract, and there is no other evidence to support this portion of the Plaintiffs’ assertion is without merit, inasmuch as there is no reason to deem otherwise.

3. Conclusion

The plaintiffs' claims are dismissed in entirety due to the lack of reason, and the costs of lawsuit are fully borne by the losing plaintiffs.

subsection (b) of this section.