(영문) 서울행정법원 2009.1.23.선고 2008구합12825 판결

Attached Form 1. The Defendant’s imposition of global income tax on the remainder of the Plaintiffs other than Plaintiff G and H, the imposition of global income tax on the date of imposition of global income tax notice, the date of imposition of global income tax notice, and the date of imposition of global income tax on the column of remaining tax amount, and the refusal of correction on the date of refusal of correction on the date of correction.

Reasons

1. Details of the disposition;

A. From 2003 to 2004, the plaintiffs subscribed to the United Nations chemical deposit (hereinafter referred to as the "NE deposit transaction") under the name of the United Nations Exchange Deposit Agreement (hereinafter referred to as the "Agreement") between the plaintiffs and the S Bank, which is to receive the payment of the principal and interest at the maturity of 0.25% (hereinafter referred to as the "NE"), and at the same time (2) at the maturity or termination of the above gold contract, the United Nations deposit principal and interest were transferred to the S Bank at the exchange rate fixed in advance (hereinafter referred to as the "counter transaction") and received the payment of the said amount in Korean won. The detailed details are as shown in the deposit status table No. 2.

B. As to the instant contract, S Bank did not withhold only the portion corresponding to the UN Time Deposit and Interest among the profits received by the Plaintiffs as to the instant contract, and did not withhold only the remaining portion corresponding to the marginal profits from exchange of the gift. The Defendant was in substantial taxation related to the instant contract.

Under the premise that the total amount of profits received by the plaintiffs falls under interest income under Article 16 (1) of the Income Tax Act, each global income tax was imposed on the plaintiffs other than plaintiffs G and H as shown in attached Form 1.

C. Plaintiff G and H filed a claim for correction of the amount of tax related to the refund of the aggregate income tax, among the instant contracts, on the basis of the entire interest income. Of these, the gift exchange marginal profit portion was not an interest income but an interest income, but a claim for correction. However, the Defendant rejected the above Plaintiffs’ application for correction on the grounds as seen earlier, such as the details of the disposition of refusal of correction on the ground of the attached Table 1.

D. On December 28, 2007, in the case of the rest of the plaintiffs other than plaintiffs G and H, a national tax proceeding was conducted on December 28, 2007, and the amount of the first notified tax reduced or corrected the notified tax amount as stated in the details of imposition of global income tax. The notified tax amount was reduced or corrected as stated in the details of imposition of global income tax, and in the case of plaintiffs H, a claim for correction was accepted as shown in the attached Table 1.

[Grounds for Recognition] Each entry in Gap 1 through 5, Eul 1 through 11, and the purport of the whole pleadings, as a whole, without dispute

2. Determination on the legality of the disposition

A. The plaintiffs' assertion

The instant contract consists of ① the UN Time Deposit Contract and ② the futures exchange contract separate from this. The gains from the said futures exchange transaction do not constitute income subject to taxation under the Income Tax Act, and commercial banks have treated financial instruments similar to those from around 2002 as non-taxation for the portions of the futures exchange contract, and around September 2003, the National Tax Service issued a reply that it is not subject to taxation under the said futures exchange contract, but it goes against the principle of good faith, etc.

(b) Related statutes;

Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007)

Article 16 (Interest Income)

(1) Interest income shall be the following income generated during the relevant year:

3. Interest and discount amount of deposits (including installment savings, installment savings, deposits, and postal transfer; hereinafter the same shall apply) received in the Republic of Korea;

13. Incomes similar to those under subparagraphs 1 through 12, which bear a nature of price following any use of money.

(2) The interest income amount shall be the gross income amount during the relevant year.

C. Determination as to whether a gift exchange transaction marginal profit is subject to taxation

(1) Article 16(1)3 of the Income Tax Act lists interest and discount amounts of deposits (including installment savings, installments, deposits, and transfers by mail) in Korea as one of interest income. Article 16(1)3 of the same Act provides that the income similar to the income under subparagraph 3, etc., which is in the nature of a consideration for the use of money, also includes the income in the nature of a consideration for the use of money. However, in foreign exchange transactions, foreign exchange trading profits arising from exchange rate differences are not subject to taxation under the Income Tax Act because the Income Tax Act, which is known in the form of income in the form of revenue, is not listed in any of the incomes prescribed in the form of income in the form of revenue.

Generally, interest refers to the money received in proportion to the original amount and the lending period, and the money received as a substitute for such money and the fee, etc., regardless of the name thereof, and whether it constitutes interest received by the customer due to transactions such as deposits between banks and its customers, and whether it constitutes non-taxation income such as marginal profits arising from the past of foreign exchange, which is a matter of interpretation of how to see the legal act related to the transaction in question. However, in light of the substance over form principle, it is not simply dependent on the content or form of the contract, but rather on the party’s intent and the process of concluding the contract, the degree of return, and its profits.

It is necessary to make a final and conclusive decision and the overall process of the transaction.

(2) According to the above-mentioned evidence and evidence and evidence Nos. 12 through 23 (including above numbers) each entry into the gift exchange agreement, and (1) the S Bank shall, from 2003 to 205, pay more than the fixed rate of interest on the gift exchange transactions to its customers at the same time as the gift exchange agreement, and as a result, to attract large amount of won currency deposits between other financial institutions, the United Nations currency swap deposits or the UN currency exchange contract, such as the contract of this case, shall be developed, and the Korean currency currency deposit shall be changed to its customers with their subscription period for three months or six months, and the amount of interest on the deposit at maturity shall be 50 million won or more, but no more than the rate of interest on the gift exchange transactions established at the time of the contract of this case shall be determined separately from the fixed rate of interest on the gift exchange contract of this case, and the plaintiffs shall not be able to obtain the comprehensive amount of interest on the gift exchange account of this case as the consolidated amount of interest on the gift exchange contract of this case.

(A) The gift exchange rate stipulated in the instant contract is not set according to the forward exchange rate in the foreign exchange market in which the Korean won and the United Nations are traded, but rather set up in consideration of the total return rate after the imposition of the gift transaction volume on the basis of the interest rate on time deposits in the Korean won currency. This part of the instant contract consists of profits in the form of forward exchange marginal profit in the form of the gift exchange margin in the instant contract, thereby constituting a structure at which the total profits of the instant contract are higher than the Korean won deposit amount (the annual interest rate of the UN currency deposit, which is subject to taxation, is less than 05%, is set at 4% per annum by establishing non-taxation marginal profits).

(B) Therefore, since the gift exchange transaction of this case and the UN Time Deposit transaction are closely related to their functions, it is not possible to present the content of this case itself in case of separate understanding, and furthermore, considering that it is the most important characteristic of the gift exchange contract to be made based on uncertainty of the present and future currency value ratio between the Korean won and UN currency, in the case of the instant contract, the foreign exchange transaction profit is not exempt from taxation, regardless of the exchange risk due to exchange fluctuation, and the entire return rate was established based on only the comparison with the exchange rate of Korean currency, by considering that it is the most important characteristic of the gift exchange contract.

(C) In addition, with respect to the effect of a contract, the Plaintiffs are merely guaranteed to sustain a certain amount of won currency through the instant contract, and there is room for the Plaintiffs to suffer unexpected damages or to look at profits due to the fluctuation of exchange rates at the time of maturity when they agreed to exchange exchange transactions by determining exchange rates at the time of the contract.

(D) The transfer of the UN funds under the instant contract only exists under the pretext of the transfer, and there is only the entry and withdrawal of the won currency between the Plaintiffs and the S Bank, and there is no difference between the deposit in Korean currency for a certain period of time and the time deposit in Korean won in which the principal and interest in Korean won is paid at maturity.

(3) In order to avoid exposure to exchange risks arising from forward exchange transactions among forward exchange transactions with customers, the plaintiffs entered into a forward exchange transaction with foreign financial institutions in the bank market at the market futures exchange rate at the time. The above forward forward exchange rate for forward exchange transactions is the applicable exchange rate of forward exchange transactions between the plaintiff and the customer. However, the plaintiffs do not submit any material as to the fact that the above forward exchange transaction was actually entered into or it was made to preserve exchange risks arising from the instant contract between the plaintiffs and the S bank. In addition, in light of the plaintiffs who are the global income tax payer of this case, the contract of this case was made regardless of exchange rate fluctuation risks, while S Bank constitutes an integrated deposit transaction with the name of the bank in Korean currency as one of the above terms and conditions of cash exchange transactions, which are similar to the above terms and conditions of cash exchange transactions, and thus, constitutes an integrated deposit transaction in Korea, and thus, it constitutes an interest income under the comprehensive deposit transaction in Korea as one of the above terms and conditions of cash exchange transactions.

Therefore, this part of the plaintiffs' assertion cannot be accepted.

D. Determination as to the assertion on violation of the good faith principle

In general, in order to apply the principle of trust and good faith to the tax authority's act in tax law relations, first, the tax authority must give the taxpayer a public opinion that is the object of trust, second, the taxpayer has no reason for the taxpayer to believe that the tax authority's expression of opinion is justifiable, third, the taxpayer must trust the expression of opinion and perform what is the reason for the taxpayer to do. Fourth, the tax authority's disposition against the above expression of opinion should result in infringing the taxpayer's interest by making the disposition against the above expression of opinion. Fourth, the interpretation of the tax law or the conduct of national tax administration accepted generally by the taxpayer under Article 18 (3) of the Framework Act on National Taxes is just to an unspecified general taxpayer who is not a specific taxpayer even if it is erroneous interpretation or practice, and it is unreasonable for the taxpayer to have trusted such interpretation or practice, and the taxpayer has no reason for proving the existence of such interpretation or practice in this case's opinion or the burden of proving that it is a public taxpayer.

Therefore, this part of the plaintiffs' assertion is without merit.

3. Conclusion

Thus, the plaintiffs' assertion is dismissed as it is without merit.