In a case where the original claim is extinguished by acquiring a new claim exceeding the principal and interest of the original claim due to an assignment of claim in lieu of satisfaction of the obligation, whether it can be deemed that other income under Article 21(1)10 of the former Income Tax Act has occurred (negative in principle); and in such a case, the time when other income accrued (=when the obligee collects the amount exceeding the principal and interest of the original claim based on the acquired claim in reality)

Income tax is imposed on a person who is deemed to have the ability to pay a taxpayer when it controls, manages, or takes place a certain economic benefit, notwithstanding the nature and effect under the private law. Thus, even if certain income is deemed to accrue under the private law, if it is merely merely equivalent to the calculation, nominal, and nominal income, and cannot be deemed to have the ability to control, manage, and take over the economic profit, it cannot be deemed that there is income subject to income tax. In a case where a debtor transfers a claim in lieu of payment of the principal and interest of the claim as a penalty or compensation for nonperformance of the obligation to vest in the creditor as a result of the debtor’s default on the value of the claim transferred by the debtor, the creditor is not different from the previous one in that he still remains in the state of having failed to obtain substantial and final satisfaction without holding the asset in the form of the debtor and the claim, even though the face value of the claim is changed, and as a matter of principle, Article 50(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17032, Dec. 29, 20000) provides for the original claim to be transferred.

Article 21 (1) 10 of the former Income Tax Act (amended by Act No. 6292 of Dec. 29, 2000), Article 41 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17032 of Dec. 29, 2000) (see current Article 41 (7)), and Article 50 (1) of the former Enforcement Decree of the Income Tax Act

Plaintiff (Attorney Park Young-chul et al., Counsel for the plaintiff-appellant)

Head of Central Tax Office

Seoul High Court Decision 2012Nu8030 decided October 26, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the ground of appeal on the nature of assignment of claim

A. Comprehensively taking account of the evidence adopted, the court below found that ① the representative director of ○○ Shopping Co., Ltd. transferred on June 23, 1997 the shares of the above company and the operating rights, etc. to the Management Countermeasure Committee (hereinafter “Management Countermeasure Committee”) on September 23, 1997, and the payment rate shall be 3.5 billion won on September 23, 1997, and the interest rate for delay shall be 36% per annum (hereinafter “instant priority claim”) and ② Non-party 1 paid the above bonds to the Plaintiff who was in a business relationship with the above company to pay 1.0 billion won on September 23, 1997 to the Plaintiff on June 23, 197 as well as the above bonds to the Plaintiff on September 23, 1997 by adding them to the above Management Countermeasure Committee’s loan repayment amount to the Plaintiff 4.7 billion won on September 12, 1997.

Based on these factual basis, the lower court determined that the transfer of the instant claim against the Plaintiff and Nonparty 2 was substituted for the repayment of the instant original claim, in light of the circumstances indicated in its reasoning, including the fact that the Plaintiff and Nonparty 2 received the instant claim and substituted for the repayment of the instant original claim and returned the promissory note issued by ○○ shopping Co., Ltd., which was secured by the instant original claim, to the said company.

B. The allegation in this part of the grounds of appeal is that the fact-finding and judgment of the court below are unlawful even though Nonparty 1 transferred the key claim of this case to the plaintiff and Nonparty 2 as a security for the repayment of the obligation or for the repayment of the obligation. However, this is merely an error in the selection of evidence or the fact-finding which belong to the exclusive right of the court below, which is a fact-finding court, and thus cannot be a legitimate ground of appeal. Furthermore, even if the fact-finding of the court below is examined in light of the records,

2. As to the ground of appeal on the collection of the claim of this case

A. Article 21 (1) 10 of the former Income Tax Act (amended by Act No. 6292 of Dec. 29, 200) provides that "the penalty or compensation received due to a breach or cancellation of a contract" is one of the other income, and Article 41 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17032 of Dec. 29, 2000) provides that "the penalty or compensation for breach of contract under Article 21 (1) 10 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17032 of Dec. 29, 200) is the compensation for breach or termination of a contract on the property right, and regardless of its title, it refers to the value of money or other goods to compensate for the damage exceeding the payment itself which forms the original content of the contract." Meanwhile, Article 50 (1) of the former Enforcement Decree of the Income Tax Act provides that "the time when the amount of gross income from other income

B. On March 30, 2004, the lower court recognized the following facts: (a) the Plaintiff and Nonparty 2 received KRW 3 billion based on the instant key claim; (b) on June 14, 2007, the distribution schedule was finalized in the procedure for compulsory auction based on the instant key claim; and (c) the Defendant received dividends of KRW 1,687,341,838; and (b) on March 1, 2011, from the above amount paid by the Plaintiff and Nonparty 2, the amount equivalent to the Plaintiff’s share out of the amount exceeding the principal amount of the instant key claim, which was paid by the Plaintiff and Nonparty 2, the amount equivalent to the Plaintiff’s share was deemed to be other income accrued in 2004 and 207; and (c) determined that the instant disposition was unlawful on the ground that the Plaintiff and Nonparty 2 received dividends or other income in excess of the principal amount of the instant key claim for payment in lieu of payment; and (d) on the ground that the said amount was not paid or paid for KRW 2074, 200.

C. However, we cannot agree with the judgment of the court below for the following reasons.

Income tax, notwithstanding the nature and effect under the private law, is imposed on a person who has the ability to pay a taxpayer when it controls, manages, and takes place a certain economic benefit. Thus, even if certain income is deemed to accrue under the private law, if it is merely merely equivalent to the calculation, nominal, and nominal income, and cannot be deemed as having the ability to control, manage, and take over the economic profit, it cannot be deemed that there is income subject to income tax. In a case where a debtor transfers a claim in lieu of the repayment of the principal and interest of the principal and interest of the claim as a penalty or compensation for nonperformance of the obligation to vest in the creditor as a result of the repayment of the obligation, the creditor is not different from the previous one in that he/she still remains in the status of having the debtor and the face value of the claim but still remains in the status of having failed to obtain the actual and final satisfaction. In light of such other income in lieu of such other income, it cannot be said that the first claim is extinguished by the transfer of the principal and interest of the claim, unless there is any special circumstance as to the original claim exceeding the original obligation.

Examining the facts acknowledged by the court below in light of the above legal principles, since the non-party 1 transferred the key claim of this case in lieu of the repayment of the obligation to the plaintiff and the non-party 2 as a penalty or compensation for default of the amount exceeding the principal of the original claim of this case from the value of the key claim of this case, the non-party 1 transferred the key claim of this case in lieu of the repayment of the obligation. Thus, on July 24, 2000 on the day when the effect of the assignment of claim in lieu of the repayment of the obligation became effective, it cannot be deemed that there was other income on the original claim of this case. Of the value of the key claim of this case collected by the plaintiff and non-party 2 in reality, the time of receipt shall be deemed as March 20 and June 14, 2007.

Nevertheless, the lower court determined otherwise on the ground that the instant disposition was unlawful on the ground that the time of receipt of the claim ought to be deemed as the day when the assignment takes effect on July 24, 2000, and thus, the lower court erred by misapprehending the legal doctrine on the time of receipt of other income in the event that the assignment of claim takes place in lieu of the repayment of debt, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)