early 2007west4256 ( December 28, 2007)

Profit from the forward exchange transaction of the swap deposit shall not be deemed as interest income.

Income from the forward exchange transaction of the swap deposit is similar to the interest of the deposit, and cannot be deemed as interest income in the nature of the consideration due to the use of the money.

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

1. The defendant's refusal to correct each of the plaintiffs listed in the separate disposition list as of March 1, 2007 shall be revoked on the date stated in the separate disposition list "the date of rejection of correction" as of the same list with respect to each of the plaintiffs listed in the detailed global income and disposition in the separate disposition list as of March 1, 207.

2. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

A. From 2002 to 2005, the plaintiffs entered into a gift exchange contract (hereinafter referred to as the "counter bank") with the company, the company from 2002 to 2005, and ① the plaintiffs entered into a gift exchange contract (hereinafter referred to as the "securities exchange contract of this case" and the "deposit transaction of this case") under which the plaintiffs paid the Korean won to the TPP, and ② they receive the fixed interest at or before 0.25% of the year and receive the principal and interest at maturity (hereinafter referred to as the "the above contract of this case and transactions arising out of the above contract of this case"), and ③ upon maturity of the above UN regular deposit contract, the parties sold the principal and interest of the UN deposit at the rate of exchange agreed in advance and receive the payment in Korean won (hereinafter referred to as the "securities exchange contract of this case" of this case, and the "securities exchange transaction of this case" of this case (hereinafter referred to as the "securities exchange transaction of this case").

B. From among the profits from the instant transaction, the ▽▽ bank deemed the interest income under the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006, hereinafter referred to as the “Income Tax Act”) to be the portion arising from the instant deposit transaction, and did not withhold the tax on the premise that the portion arising from the instant futures exchange transaction was not the interest income.

C. The Defendant imposed global income tax (including return and additional tax for arrears) on the Plaintiffs as stated in the separate disposition list on the grounds that the profits from the gift exchange transaction of this case also constitute interest income, and on the Plaintiffs as stated in the separate disposition list, such as the tax amount initially imposed (hereinafter referred to as “the initial imposition disposition”).

D. On December 28, 2007, the Plaintiffs were dissatisfied with the initial imposition disposition and filed an appeal with the National Tax Tribunal, and on December 28, 2007, the National Tax Tribunal rendered a decision to revise the initial imposition disposition by excluding the portion of the return and non-payment for the reason that there is justifiable reason that the above Plaintiffs did not return and pay the comprehensive income tax on the profits arising from the gift exchange transaction in this case, and accordingly, the Defendant reduced the amount of the initial imposition disposition by reducing the amount of the return and non-payment for erroneous payment from the initial amount of the tax notified in the separate disposition list, and reduced and corrected the same as the remaining amount of the tax recorded in the same list.

E. Meanwhile, the Plaintiffs in the separate sheet of refusal to rectify the Plaintiff’s request for correction, such as the separate sheet of refusal to rectify the global income tax on the Plaintiffs in the separate sheet of refusal to rectify the global income tax on the grounds that the entire profits from the instant transaction were as interest income, and that the portion arising from the instant forward exchange transaction was not interest income, and that the portion arising from the instant forward exchange transaction was claimed for correction related to the portion related to the above forward exchange transaction among global income tax already paid, but the Defendant also constitutes income subject to taxation pursuant to Article 16(1)13 of the Income Tax Act (hereinafter “each of the instant dispositions”).

[Grounds for Recognition: Evidence 1 through 3 of Gap evidence 1, evidence 1 through 5, evidence 1 through 5, evidence 3, evidence 1 through 8, 9, 11 through 18, 11 through 18, 11 through 18, 2, evidence 1, 3, 4 and 5 in each of the 6, 7, 9, 10, 11, 13, 14, 15, 21, 22, 25, 30, 32, 32, 33, 35, 36, 37, 39, 42, 44, 52, 52, 60, 62, 64, 64, 66, 16, 16, 16, 17, 67, 16, 17, 36, and 17

2. Whether the disposition is proper; and

A. The plaintiffs' principal

(1) The instant transaction consists of two separate trades, i.e., the instant forward exchange transaction, which is capital transaction, and the instant deposited transaction, and the benefits arising from the instant deposited transaction fall under interest income as stipulated in Article 16(1)3 of the Income Tax Act, but the instant gains arising from the instant forward exchange transaction do not fall under the consideration for monetary use, and thus does not fall under the “income as stipulated in Article 16(1)3 of the Income Tax Act” under the principle of no taxation without law and the principle of substantial taxation, as income similar to the income as stipulated in Article 16(1)3 of the Income Tax Act.

(2) The instant futures exchange transaction is not only a foreign exchange transaction profit, but also a self-financial common nature. Moreover, the instant futures exchange transaction is not reserved by the parties, unlike a repurchase agreement of bonds or securities, and thus, it does not constitute income as income similar to income under Article 16(1)9 of the Income Tax Act under the principle of no taxation without law and the principle of substantial taxation, and does not constitute income under Article 16(1)13 of the Income Tax Act.

(3) Even if the gains from the forward exchange transaction of this case fall under the income stipulated in Article 16 (1) 13 of the Income Tax Act, in light of the fact that most commercial banks, including the ▽▽△ bank, dealing with the currency swap deposit from around 2002 to handle them as non-taxation for the gains from the forward exchange transaction, the defendant was not subject to taxation until the time of each disposition of this case, and that the National Tax Counseling Center responded to the purport that the gains from the forward exchange transaction of this case from September 2003 are not subject to taxation as to questioning as to whether the gains from the forward exchange transaction of this case are subject to taxation, and the dispositions of this case violate the principle of trust protection.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) From 2002 to 2002, the △▽ bank developed a financial product that enables the UN Fixed Deposit and Exchange Transaction with the name of 'NE Exchange Deposit' and entered into a gift exchange agreement with a customer with a view to public relations and sale as more favorable than ordinary regular deposits at the early effective return rate, compared with the ordinary deposit. The customer making the instant transaction with a bank after paying the Korean won to the △△△△○ Bank, exchanging it into the UN or directly converting it into the UN into the foreign currency deposit, and entered into a foreign currency deposit agreement with the bank at the same time as the maturity of the UN Fixed Deposit Contract with a maturity of the same time as the maturity of the UN Fixed Deposit Contract with a maturity of the maturity of the exchange rate fixed at the rate of exchange (the rate of exchange calculated as follows) to sell the gift to the bank at the prescribed rate of exchange (Agreement rate of exchange).

(2) According to the instant transaction, customers changed their own won into the United Nations and deposited them into the United Nations, and the payment of interest on the deposit at maturity is almost not possible, but the gift redemption profits based on the futures exchange rate already agreed at the time of the conclusion of the contract (in Korean won, the rate of 3% per annum at the time of the contract). Accordingly, gift redemption profits under the Income Tax Act are similar to the fixed rate of deposit in Korean won, and the gift redemption profits under the Income Tax Act are tax-exempt, so it is possible to avoid the comprehensive taxation of financial income, thereby securing high profits compared with the fixed amount of deposit in Korean won.

(3) 엔/원 선물환시장은 2006. 5. 29.경까지 우리나라에 존재하지 아니하였으므로， ▽▽은행은 ☐☐☐코리아 주식회사로부터 이 사건 거래 당시 공시되는 만기의 달러/ 원 스왑포인트('스왑포인트'란 선물환율을 결정하기 위해 현물환율에서 할증되거나 할인되는 숫자로， 외환스왑거래에서 교환되는 두 통화의 이자율 차이를 보정하여 줌으로써 당사자 사이의 실질적인 손익을 대등하게 조절하는 거래가격의 역할을 한다)와 달러/엔 스왑포인트를 제공받아， 달러/원 스왑포인트와 달러/원 현물환율을 합산하여 산정한 달러/원 선물환율을 달러/엔 스팝포인트와 달러/엔 현물환율을 합산하여 산정한 달러/엔 선물환율로 나눈 엔/원 선물환율{재정(載定)환율， cross rate}을 기준으로 '약정 선물환율'을 정하였다. 다만， ☐☐☐코리아 주식회사로부터 제공받은 달러/원 스왑 포인트와 달러/엔 스왑포인트는 매시간 변동하므로 이를 이용하여 엔/원 선물환율을 계산하면 고객이 선물환계약을 체결한 시간에 따라 서로 상이한 약정선물환율을 적용하여야 할 것이지만， ▽▽은행은 매일 사내 인트라넷을 통하여 'DEPO 거래수익률'을 게시하고 동일한 날짜에 계약된 모든 엔화스왑예금의 선물환계약에 대하여는 통일한 선물환율을 적용하도록 하였다.

(4) In the event that, while running the instant transaction, there is no separate declaration of intention from the customer on the re-agreement prior to maturity, the ▽△△ bank automatically terminated the Universal Regular Deposit Contract and Exchange Contract and made the deposit into the customer account designated in advance, and the gift exchange contract is terminated at the time of termination of the Universal Regular Deposit Contract.

[Grounds for Recognition: The non-satched Facts, Gap evidence 4 2, 3, 4, 5, 7, 8, and 10 evidence 1, 2, and 11 evidence 1 to 3, Gap evidence 13, and Eul evidence 17, and Eul evidence 74; the purpose of the whole pleadings)

D. Determination

(1) The Income Tax Act provisions

Article 16 (1) 3 and 9 of the Income Tax Act lists interest and discount amounts of deposits (including installment savings, installments, deposits, and postal transfers) and bonds or securities prescribed by the Presidential Decree with repurchase agreement marginal profits as interest income, and establishes new subparagraph 13 on December 31, 201 and establishes new subparagraph 13 on December 31, 2001, which are in the nature of consideration due to the use of money also includes interest income, and adopts a tangible comprehensive principle in determining interest income subject to taxation.On the other hand, the Income Tax Act only imposes tax on the income prescribed by the Act, and does not impose tax on the income not listed as taxable income such as foreign exchange trading profits arising from exchange rate differences in foreign exchange transactions.

(2) Whether the interest on a valuable deposit and similar income arising from the forward exchange transaction in the instant case fall under the interest income that has the nature of the consideration following the use of money

(A) Unless there are special circumstances, such as that the transaction form taken by the parties concerned is the act to avoid the burden of tax, and that the above act constitutes the disguised act, it shall be deemed valid, and in order to deny it, it is necessary, in light of the request for legal stability or predictability to protect the taxpayer from the person with power, and in light of the legal basis to protect the taxpayer (see Supreme Court Decision 90Nu3027, May 14, 1991).

In full view of the following circumstances revealed from the purport of the aforementioned facts and the entire pleadings, it is difficult to view the instant futures exchange transaction merely constitutes a disguised act, or it is difficult to view the instant transaction as merely a single won deposit transaction using the form of foreign currency regular deposit and futures exchange transaction, and rather, it is reasonable to view that the instant transaction was effective as a separate legal act, respectively.

① The Plaintiffs did not specifically recognize the structure of the instant transaction or the actual state of futures exchange transactions at the time of entering into the instant transaction contract with the ▽▽ bank, but, at least, the foreign exchange profits under the Income Tax Act are exempt from taxation, and may be subject to comprehensive financial income taxation, and thus, they are engaged in the instant transaction with the awareness that they may obtain tax revenues higher than general deposits through futures exchange transactions. Therefore, it cannot be deemed that there was an explicit or implicit agreement between the Plaintiffs and ▽▽▽ bank that the said transaction was concluded only formally, and that the fact that the said transaction was invalid between the parties.

② The Plaintiffs, at the time of the instant transaction with the ▽▽ bank, separately entered into the instant deposit contract and forward exchange contract with each other, respectively, and the agreed exchange rate applied to the instant futures exchange transaction is not arbitrarily determined by the Ⅳ bank, but determined by reflecting the actual forward exchange rate in the foreign exchange market at the time of each transaction.

③ In the event that there is no separate declaration of intent from a customer on the re-agreement in the course of selling a swap deposit before maturity, the ▽△△ bank is deemed to be closely combined with the instant deposit contract for the purpose of achieving the purpose of the UN swap deposit transaction, and the said contract is automatically terminated and deposited into a customer account designated in advance. In the event that the said contract is terminated, the said contract is also terminated at the same time.

④ The final determination of profits and losses to be gained by the parties to a transaction according to the futures exchange rate and the spot exchange rate at the time of the conclusion of the contract is natural in view of the general futures exchange transaction, and in particular, those who wish to sell an object during the due period, as at the time of the conclusion of the contract in this case, are determined definitely to gain profits during the due period in cases where the futures exchange rate at the time of the conclusion of the contract in the futures exchange is higher than the spot exchange rate at the time of the conclusion of the contract in this case, and the UN/N swap point at the time of the conclusion of the contract in this case where the transaction in this case continues to exist, and it is difficult to view that the profits gained by the plaintiffs through the transaction in this case depends on the nature of the transaction in this case. In addition, the meaning that the profits earned by the plaintiffs are conclusive by the gift exchange transaction in this case is more than the spot exchange rate at the time of the conclusion of the contract in this case, and it is difficult to view that there is no risk of exchange at all in this case since the gift exchange rate is less likely to sell.

⑤ In the instant case, there is insufficient evidence to support the fact that the ▽△ bank traded in order to avoid exchange risk caused by the instant transaction. However, whether to engage in the instant transaction with a view to avoiding risk, and whether to take the exchange risk without having engaged in the instant transaction is a matter of choice by financial institutions according to the situation and prospects of the external exchange market, and even if there was no cyber transaction related to the instant transaction, it is not a circumstance that may affect the nature of the instant transaction.

6. Generally, interest refers to the money received or its substitute in proportion to the original amount and the lending period by lending money. The profits earned by the Plaintiffs from the forward exchange transaction in this case are not proportional to the previous period, and the amount and the period of the transaction are uniform, respectively, depending on the agreed futures exchange rate at the time when the said transaction takes place.

7) As the payment of Korean won from most customers at the time of the instant transaction was made, there is almost no fact that the said payment was made in kind. However, according to the evidence No. 16-1 through No. 5, the instant deposit contract was concluded, and the TPP-bank stated that the deposit amount was included in the UN currency account and all kinds of books including financial statements, etc., and accordingly, it was recognized that the UN currency deposit from around 2003 to 2004, which was the time of the instant transaction on the foreign currency balance sheet of the TPP-bank, was much increased compared to that of 2002. Accordingly, it is difficult to readily conclude that the ▽-bank violated the general corporate accounting principles and deposit management guidelines by deeming that the Korean won currency deposit received from customers, unlike the above books, was raised as the fund in Korean won and operated as the fund in Korea.

(8) In order for a taxpayer to carry out economic activities to achieve the same economic purpose, one of the several legal relations may be selected in consideration of the efficiency in achieving its purpose and the degree of tax burden, and the tax authority shall respect the legal relations chosen by the parties, except in extenuating circumstances (see Supreme Court Decision 2000Du963, Aug. 21, 2001).

As seen earlier, it is reasonable to view that all transactions consisting of the instant transaction are effective as separate legal acts, and the content and scope of taxes are individually determined in accordance with the legal relationship. There are circumstances such as the instant futures exchange contract closely incorporated with the instant deposit contract, and the Plaintiffs less than the case where the Plaintiffs entered into a general deposit contract and received interest by taking such transaction form. However, even though any transaction is not subject to the same treatment under the tax law despite the difference in legal form (if there is a problem as to the legality of taxation on the income prior to the establishment of paragraph (3) due to the amendment of Article 14 of the Framework Act on National Taxes on December 31, 2007, the benefits derived from the instant futures exchange transaction are not a kind of foreign exchange profit, and the benefits derived from the instant futures exchange transaction are not a kind of foreign exchange profit, and the benefits derived from the use of money is not a consideration for the use of money, which is similar to the interest of deposits, given its nature.

(3) Whether profits from the instant futures exchange transactions constitute interest income in the nature of consideration arising from the use of money as income arising from trading with buy-back agreement or securities, or under Article 16(1)9 of the Income Tax Act and Article 24 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010) under the premise that the gains from the instant securities exchange transactions are profit margin from the “bonds” or “securities.” However, in the case of trading with buy-back agreement under Article 16(1)9 of the Income Tax Act, the nature of consideration for the use of money is weak compared to other interest income listed in each subparagraph of Article 16(1)9 of the Income Tax Act, and Article 16(1)9 of the Income Tax Act, and Article 24 of the Enforcement Decree of the same Act limit the scope of such profits as interest income, and Article 16(1)13 of the Income Tax Act does not require comprehensive transfer of securities in the form of foreign currency.

(4) Sub-determination

Therefore, if the profits arising from the gift exchange transaction of this case come to fall under the interest income stipulated in Article 16 (1) 13 of the Income Tax Act, it is illegal that the disposition of this case is not necessary for the plaintiff to live in the place of money of the plaintiff.

3. Conclusion

Since the plaintiffs' claims are well-grounded, they are valid.