Seoul Administrative Court 2007Guhap10891 (2008.06.04)

National High Court Decision 2005No4461 (Law No. 1.04, 2007)

With the failure to secure collateral for a loan claim, the unpaid amount among the parties to the agreement cannot be said to have become final and conclusive.

In order to become an income subject to taxation, the right to generate income should be considerably mature in the feasibility of the realization thereof, but the portion for which the agreed interest was not paid without securing any particular security on the loan claim can not be deemed to have become final and conclusive on the date of payment of interest.

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

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The Defendant’s imposition of KRW 463,076,940, global income tax for the year 2000, global income tax for the year 200, KRW 375,413,030, global income tax for the year 200, and KRW 240,344,880, global income tax for the year 2001 (241,104,130, global income tax for the amendment of the purport of the claim as of June 20, 2007), global income tax for the year 202, KRW 132,110,350, global income tax for the year 202, and KRW 16,54,170, global income tax for the year 203 shall be revoked.

2. Purport of appeal

A. The part of the judgment of the court of first instance against the plaintiff is revoked. On April 15, 2005, the defendant revoked the disposition of imposition of KRW 210,658,904, global income tax of KRW 144,283,575, global income tax of KRW 144,285,575, and global income tax of KRW 101,760,986, global income tax of KRW 568,948, global income tax of KRW 10,536,264, and global income tax of KRW 10,536,264 for the year 200 for the plaintiff on April 15, 2005.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to that part is dismissed.

1. Quotation of judgment of the first instance;

The reasons for this statement are as follows: "241,104,130 won of global income tax of 4th 5th 10th 5th 10th 4th 5th 10th 5th 10th 5th 5th 5th 4th 5th 5th 5th 5th 5th 10th 6th 10th 6th 10th 10th 4th 5th 5th 8th 4th 8th 4th 8th 8th 4th 8th 4th 8th 8th 15th 4th 8th 4th 5th 8th 4th 8th 8th 4

[Attachment]

D. Determination

(1) As to the interest income on the loan to Kim ○

(A) According to the above facts, since the Plaintiff’s loans to Kim○ as of January 1, 199, the sum of KRW 87,500,000 + KRW 1100,000 as of March 1, 199, and KRW 1.3 billion as of June 1, 199, and the remaining KRW 300,000 as of September 17, 2002 were repaid around October 31, 2003, the Plaintiff’s interest income from the above loans amounting to KRW 158,00,000 (= KRW 19,000 + KRW 37,50,000 + KRW 101,50,000 + KRW 1074,000,000 + KRW 636,06,606,000, KRW 636,606,606,000, KRW 206,6366,000.

(B) On this point, if the plaintiff extended KRW 1 billion to ○○○, Nowon-do, and the second instance of the loan to ○○, it is natural to obtain the interest profit accrued during the middle period. The plaintiff paid interest that he received from ○○, etc. as it is, and there is no gain from the middle interest profit accrued from ○○, etc. on November 26, 1998 with respect to ○○○○ Dong-dong's real property owned by ○○, Sungnam-si, Kim○-si, the above KRW 1 billion was repaid and the remaining KRW 300 million was not yet repaid, and the registration of creation of a mortgage was cancelled while Kim○-do was not yet repaid, and the above KRW 1 billion was borrowed from ○○○○, etc. through testimony at the first instance of the first instance. However, the plaintiff's assertion that the above KRW 1 billion was not a person who lent ○○, but a witness of 2000,000,0000 won to ○○○.

First, comprehensively taking account of the respective descriptions of evidence Nos. 1 and 2-1 (as stated in the evidence Nos. 9 and 12) and the testimony of the first instance court Kim ○○ (excluding the part not trusted in the above), Kim ○ was recognized that Kim ○ borrowed money of KRW 1 billion and received all the money from the plaintiff, and that all the interest thereon was paid to the plaintiff (in the case of remittance, deposit to the account in the name of the plaintiff-friendly job offering branch). However, according to the plaintiff's assertion (as of May 1, 2007), the above KRW 1 billion was delivered to Kim ○ at least 30 times, and if the plaintiff merely arranged for a loan, there is no reason for the plaintiff to deliver money each time the loan takes place. Moreover, interest on KRW 1 billion has no reason for the plaintiff to deliver it in the middle of the lending period, and there is no reason for the plaintiff to receive it as a borrowed account.

Secondly, the plaintiff asserts that the interest that he received from Kim ○ without obtaining any interest-free profit in the middle was delivered to Lee ○○, etc., but the above assertion is not supported by specific financial transaction data, and it is difficult to believe it as it is.

Third, the Plaintiff asserted that, while arranging Lee ○-o, etc. to lend money to Kim ○, the Plaintiff guaranteed the obligation of Kim ○-o to borrow money. However, there is no clear reason why the Plaintiff had to take the guarantee on the whole of the loan act by Kim ○-o, which took place over several times as above.

Fourth, according to the Gap evidence No. 11 (No. 11)'s statement, Kim Jong-dong's ○○○-dong's ○○○-dong's ○○○-dong's ○○○○-dong's ○○○○-dong's ○○○○-dong's ○○-dong's ○○○-dong's ○○○-dong's ○○○-dong's ○○○-dong's ○○-dong's 1998.11, after the IMF's economic crisis, Kim ○-○ was delayed in paying the principal amount. However, the plaintiff already prepared the No. 30 on December 30, 1997, and thus, even if ○○-dong's 1 billion won was a creditor, it seems that it was necessary to keep the mortgagee of this case's ○-dong's ○-dong's ○-dong's ○○-dong's ○○-si's 1 billion.

Fifth, on June 30, 2004 and July 1, 2005, 2005, around the time when the tax investigation on the plaintiff or the procedure of the first instance on each of the dispositions of this case was conducted, documents confirming that they lent money to the plaintiff and again lent it to Kim ○. Meanwhile, on July 5, 2005, documents confirming that "No. 6-2 and 3 of this case were established on the loan owned by the plaintiff because it was impossible for the plaintiff to recover KRW 400 million since it was not recovered" (No. 6-1 of this case's evidence) was written to the effect that "No. 6-1 of this case's mortgage was established on the loan owned by the plaintiff." It is difficult to see that the plaintiff was established on May 22, 2003 in good faith on the ground that the above mortgage was established on the loan of No. 1, 400,000,000 won prior to the establishment of the mortgage registration of this case's loan.

(2) As to the interest income on loans to the couple of 000 marc

(A) First of all, according to the facts of the above recognition as to whether the Plaintiff lent KRW 1.2 billion to the couple of Park Man-gun, it can be acknowledged that the Plaintiff lent a sum of KRW 1.2 billion from 1996 to 202 from 1997, by lending money to the couple of Park Man-gun by borrowing money from 00,000 won or lending money from 0,000,000 won from 196 to 1997.

In light of the fact that the Plaintiff paid interest received from the 1.2 billion won to the 1.2 billion won to the 1.2 billion won to the 1.6 billion won to the 1.6 billion won to the 1.6 billion won to the 1.6 billion won to the 1.2 billion won to the 1.6 billion won to the 1.6 billion won to the 1.6 billion won to the 1.2 billion won to the 1.6 billion won to the 2000 million won to the 1.6 billion won to the 1.4, 5, 22, 4, 5, 23-1, 1, 2, 2, 4, 5, 15, and 15, and 60 billion to the 1.2 billion won to the 1.2 billion won to the 2000s to the 1.6 billion won to the 1.6 billion won to the 1.6 billion won to the 1.

First, comprehensively taking account of the overall purport of the arguments in Gap evidence 1-1, Nos. 1-2, and Nos. 2-2 (the same shall apply to the evidence Nos. 10 through 12) and the testimony of the witness Kim Jong-○ (excluding the portion not trusted in the above), it is recognized that Park Jong-ok borrowed the above KRW 1.2 billion from the plaintiff and received all the money from the plaintiff, and that all the interest accrued therefrom was paid to the plaintiff's borrowed name account (it was opened in the name of the plaintiff's friendship ○, ○○, and ○○). If the plaintiff merely arranged for a loan, there is no reason for the plaintiff to deliver the money each time the loan takes place. And there is no reason for the plaintiff to deliver the interest of the above KRW 600 million within the lending period in the middle of the lending period, and there is no reason for payment of it as the borrowed name account.

Secondly, the plaintiff asserts that the interest that he received from the Park ○-gun couple without any interest gains in the middle was delivered to the person ○○, etc., but it is difficult to believe that the above assertion is not supported by specific financial transaction data.

Third, in the first instance court, Kim Jong-hee testified to the effect that the above KRW 600 million out of the above KRW 1.2 billion was borrowed from the plaintiff, the remaining KRW 600 million was received directly from the plaintiff at the plaintiff's house (the remaining amount was the same as that at the time, and the remaining amount was not memory), and that interest was deposited into the plaintiff's borrowed account and paid in cash. On the other hand, at the first instance court, he directly paid to the plaintiff's house or the plaintiff's house as cash or check at the plaintiff's house or the plaintiff's house, and the interest was paid to the plaintiff, and it is doubtful that he did not coincide with each other's statement on the place and method of lending and the method of payment of interest.

Fourth, on April 12, 2004, Sulhee lent 3.5 million won to the Plaintiff, and the Plaintiff was unable to recover the loan from the couple of Park Jong-ok, and then paid the Plaintiff money to the Plaintiff (Evidence A-2). On April 26, 2004, ○○○○○○ made a confirmation document (Evidence A-1 of No. 8) that the Plaintiff created a right to collateral security on the loan owned by the Plaintiff as the Plaintiff lent KRW 200 million to the couple of Park Jong-ok and was not repaid. Since it was not repaid, it is difficult to readily understand that the Plaintiff made a payment by subrogation to Pulhee and set up the right to collateral security on the loan owned by the Plaintiff.

(B) Next, in order to determine that the Plaintiff’s interest income in 199 and 2000 won was realized with respect to the Plaintiff’s 199 and 1.200 billion won loan income, it is not necessary until the income has been realized, and at least the right to generate income is considerably mature and confirmed with the possibility of realizing it. However, it can be deemed that there was income and the right to generate income has been mature and confirmed with certain facts, and it is reasonable to determine it by taking into account the nature, contents, and law of each specific right, and various actual conditions. In light of the above facts, it cannot be deemed that the Plaintiff did not secure any security in relation to the loan claim against the 1.2 billion won loan to the 199 and 2000 won loan couple, since the agreement on the loan certificate in this case cannot be deemed as having been mature and finalized on the date of the agreement, the Plaintiff’s interest income in this case’s 1.2 billion won loan in 2000 and 1.9 billion won loan to the above husband and wife in this case.

In regard to this, the defendant alleged that the 17,500,000 won each month was paid to the plaintiff by the 17,500,000 family interest during the period from July 199 to November 1, 199, but it is not sufficient to recognize this only by the statement of the 3th evidence, and there is no other evidence to acknowledge this otherwise.

In addition, where Article 45 subparagraph 9-2 of the Enforcement Decree of the Income Tax Act provides that the income equivalent to the interest accrued under the agreement shall be determined to determine the existence and amount of the business income subject to taxation by determining the receipt time of the profit accruing from the cost-based business, the Defendant cannot be deemed to have actually accrued if the interest payment time comes only on the ground that the money was lent under the interest agreement (see Supreme Court Decision 93Nu4649 delivered on December 14, 1993), and the Defendant’s above assertion is without merit.

(C) Next, pursuant to Article 51(7) of the Enforcement Decree of the Income Tax Act, the Plaintiff’s interest income in 199 and 2000 is not realized so that it does not fall under the subject of interest income tax, and income tax is so-called “fixed-term taxation” which imposes tax on the income amount in 1 year from January 1 to December 31 of each year, and the interest income generated from non-business loan is calculated as the total income amount in the corresponding year. Thus, where a part of a claim exists and it is objectively obvious that the collection of the remaining claim is impossible at the time of collection, it shall be deemed that there is no realization of the interest income that satisfies the taxation requirements in the pertinent taxable year as long as the collection of the collected amount is less than the principal amount. However, it cannot affect the duty to pay interest income already realized prior to the occurrence of an impossible cause (see Supreme Court Decision 2005Du5437, Oct. 28, 2005).

(D) The Defendant paid KRW 26,00,000 in total to the account of the head of ○○○, the Plaintiff’s father and wife’s father and wife’s father and wife’s husband and wife’s husband and wife from November 5, 2001 to November 6, 2002. This is alleged to the effect that since the Plaintiff paid interest on the above loan, the Plaintiff’s interest income should be deemed as the interest income and should be reflected in the calculation of income tax. Thus, even if the above amount was paid as interest on the above loan, this is the time after February 28, 201, when it became impossible to recover the claim against the Defendant for the above loan, and thus, it is irrelevant to the instant disposition of taxation, and thus, it is not acceptable without further review.

(3) Sub-decisions

The Plaintiff’s interest income accrued from each of the above loans to ○○○ and Gablous couple is KRW 27,50,000 on 199 (=158,00,000 + KRW 119,50,000) on 216,00 on 200 ( + KRW 174,000 + KRW 42,000) on 42,00 on 200, KRW 174,000 on 201, KRW 64,00, KRW 664,66666, KRW 30 on global income for 208, KRW 40 on 207, KRW 963, KRW 40 on global income for 205, KRW 964 on 205, KRW 964 on global income for 200 on 206, KRW 97, KRW 963,00 on 200 on 209.

Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims shall be dismissed as it is without merit. The judgment of the court of first instance is just in this conclusion, and the plaintiff and the defendant's appeal are dismissed as they are without merit. It is so decided as per Disposition.