early 2012west 4355 ( December 28, 2012)

The leased principal is illegal disposition because it is objectively apparent that it cannot be recovered on the date of the disposition of this case.

The Plaintiff’s recovered principal is less than the leased principal, and the leased principal is objectively clear on July 2, 2012, which is the date of the instant disposition, and thus, it cannot be taxed as interest income pursuant to Article 51(7) of the former Enforcement Decree of the Income Tax Act.

2013Guhap3085 Revocation of Disposition of Imposing global income tax, etc.

kingAA

Head of Seocho Tax Office

June 21, 2013

July 5, 2013

1. The imposition of global income tax of 000 won (including additional tax) imposed by the Defendant on July 2, 2012 by the Plaintiff on the Plaintiff on July 2, 2009 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. Status of the parties

From February 2006, "BCC Co., Ltd. (hereinafter referred to as "B") is a housing construction company that is performing a new building project by designating DD industry corporation (hereinafter referred to as "D") from the Seocho-gu Seoul Metropolitan Government 000 large scale 338.8 square meters and its neighboring land (hereinafter referred to as "project site of this case") as a contractor. The Plaintiff is a housing construction company that sells to BB September 3, 2007, the Seoul Seocho-gu Seoul Metropolitan Government 001 large scale 818.5 square meters and above ground buildings (71/100 of the Plaintiff's share, and the Plaintiff's mother's 29/100 of the Plaintiff's share, and completed the registration of ownership transfer in BB.

(1) On December 21, 2007, and April 2, 2008, the Plaintiff leased KRW 000,000 to B, 2% per interest month. B repaid to the Plaintiff the total of KRW 000 on January 31, 2009, and KRW 000 on February 20, 2009, and KRW 00 on June 12, 2009, and KRW 00 on July 15, 2009, and KRW 000 on August 11, 200, and KRW 00 on December 22, 2009, and KRW 00 on December 30, 2009, respectively.

(2) On October 18, 2010, the Plaintiff was sentenced to the ruling that “B paid the total amount of KRW 000 which BB paid over seven times from January 31, 2009 to December 31, 2009, and the principal amount of KRW 000, respectively, was repaid to the Plaintiff,” and the said ruling became final and conclusive around that time.

(c) Details of disposition;

(1) On July 2, 2012, the Defendant issued a correction and notification of global income tax of KRW 000 (including additional tax) in 2009 (hereinafter “instant disposition”) on the ground that the Plaintiff’s share in the Plaintiff’s land (71/100), among the interest income of KRW 000,000 (=00 KRWx 71/100), constitutes a benefit in a non-business loan.

(2) The Plaintiff sought a trial on October 4, 2012, but was dismissed on December 28, 2012 by the Tax Tribunal.

[Ground of Recognition] The non-contentious facts, Gap evidence Nos. 1 through 7, each of the evidence No. 1 (including each natural disaster) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff lent KRW 800 million to BB without interest.

Even if interest was received according to the judgment, it is not possible to impose interest income pursuant to Article 51 (7) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23588, Feb. 2, 2012; hereinafter the same) because, in consideration of the fact that D was unable to carry out a new building construction project due to the commencement of rehabilitation procedure prior to the final tax base return period, and that large-scale losses occurred in BB, B bears large-scale liabilities, and that the instant project site is trust and it is difficult to exercise property rights, the leased principal was not recovered, and that the recovered interest falls short of the leased principal. Accordingly, the instant disposition based on interest income is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) Conclusion of trust contracts

(A) On September 3, 2007, BB entered into a real estate security trust agreement with respect to the GG Real Estate Credit Trust Co., Ltd. (hereinafter referred to as "GGGG") and the project site of this case with respect to "GG is to preserve, manage, and liquidate and settle the instant project site in trust from BB to secure the creditors' obligations against BB." However, Article 10 of the Real Estate Security Trust Contract provides that "The lease agreement entered into between BB and the lessee before the conclusion of the trust contract is valid, and if the lessor’s name is transferred to GG, GG succeeds succeeds to the status of the lessor. Even if the lease is paid to BB, BB continues to receive the rent and terminate the lease contract, BB bears the duty to return the lease deposit upon obtaining the lease deposit from the lessee in 209 to the lessee in 200 and 2000 won in 200 and 2010 won in each case.

(B) On September 3, 2007, BB completed a trust registration with respect to the instant project site by the trustee, the first first beneficiary H Securities Co., Ltd. (35 financial companies, such as Second Capital of July 28, 2008, and the aggregate of the certificates of beneficial rights were KRW 000), the second beneficiary DD (the aggregate of the certificates of beneficial rights is KRW 000) and the second beneficiary DB, and the second beneficiary B.

(2) Progress of a new building construction project

On January 8, 2010, the new construction project of a building was suspended due to the commencement of D rehabilitation procedures, and the construction of a new building has not been carried out until now. BB held approximately KRW 000 as of December 31, 2010, but it bears approximately KRW 000,000, including the liabilities for loans to 35 financial companies, including the instant project site.

(3) The financial status, etc. of BB

(A) An excessive financial burden, etc., caused a net loss and untreated loss as follows to BB.

(B) BB failed to pay value-added tax, etc. from 201, and was unable to pay wages to employees around 2012. In the name of the completion of the on-site verification (Evidence (Evidence (Evidence (No. 2) that is the Defendant’s public official, the interest income of 00 won determined by the judgment was substantially discontinued at the time of 2009, and thus, it is reasonable to impose income tax on the profits from non-business loan because the OO was not in a situation in which it is impossible to recover any attempted interest, and it is reasonable to impose income tax on the profits from non-business loan.

[Ground of recognition] The facts without any dispute, Gap evidence 5 through 9, Eul evidence 2, 6, and 7, and 8 evidence (each number box), the images of Gap evidence 10, and the purport of the whole pleadings

D. Determination

(1) Occurrence of interest income

According to the above facts, the plaintiff set interest rate of 2% to BB, lent 000 won to BB, and as the interest was recognized by the judgment, the plaintiff's assertion is without merit.

(b) Interest income subject to taxation

(A) Article 51 (7) of the former Enforcement Decree of the Income Tax Act provides that "in calculating the gross income from non-business loans under Article 16 (1) 11 of the Act, where the whole or part of the principal and interest cannot be recovered from the debtor or a third party because the tax base return under Article 70 of the Act or the tax base and tax amount under Article 80 of the Act fall under the bonds under Article 55 (2) 1 or 2 before the determination or correction of the tax base and tax amount, the calculation shall be made by first subtracting the principal from the recovered amount. In this case, if the recovered amount falls short of the principal, the gross income amount shall be deemed nonexistent from the recovered amount, and Article 55 (2) 2 of the former Enforcement Decree of the Income Tax Act provides that "the bonds which are deemed irrecoverable from the debtor's death, disappearance, and missing, and Article 51 (7) of the former Enforcement Decree of the Income Tax Act amended by Presidential Decree No. 23588 of Feb. 2, 2012>

(B) The legislative intent of Article 45 subparag. 9-2 and Article 51(7) of the former Enforcement Decree of the Income Tax Act is, in principle, that interest income shall be deemed to have been fixed if the date of a payment agreement for the interest for non-business loan arrives, and it shall be deemed as subject to income tax. However, even if the date of the payment agreement arrives, in exceptional cases where there are special circumstances where it is objectively evident that it is impossible to recover the interest income due to the debtor's bankruptcy, etc., it would not be subject to income tax in the future. Therefore, the burden of assertion and proof as to this special circumstance should be determined objectively according to social norms by comprehensively taking into account the taxpayer's specific details of transactions, the circumstances after it, the debtor's assets, and the payment ability (see Supreme Court Decision 2009Du13160, Sept. 8, 2011).

(C) According to the above facts as to the amount to be recovered by the Plaintiff, the Plaintiff loaned 00 won to BB around 200, obtained a total of 000 won of interest income from BB around 2009, and the Plaintiff’s total amount of 000 won including 000 won from January 31, 2009 to December 31, 2009 is less than the leased principal after being repaid only seven times. Furthermore, according to the legal principles as to whether the leased principal was not recoverable before July 2, 2012, the date of the disposition in this case, there was no specific property other than the instant project site, and there is no amount to be paid to B, even if the instant project site was disposed of by BB in light of the claims of B1 and 2 priority beneficiaries, and the only building site of BB had been disposed of after the commencement of the new construction of the new construction site, and the amount of the Plaintiff’s remaining 20 years after the completion of the rehabilitation procedure.

(D) Sub-committee

Therefore, even if interest income was generated, it is impossible to recover the leased principal, and income tax cannot be imposed pursuant to Article 51 (7) of the former Enforcement Decree of the Income Tax Act, and the disposition of this case premised on interest income is unlawful.

3. Conclusion

Thus, the claim of this case is justified, and it is decided with the disposition.