Daejeon District Court 2013Guhap100100 (No. 11, 2013)

As to the order of appropriation of principal and interest, the implied agreement between the parties can be recognized due to various circumstances.

Of the instant repayment amount, an implied agreement was made to cover the principal based on the instant adjustment, and the interest acquired by the Plaintiff was presumed to have been first appropriated and imposed, and thus, it is an unfair disposition.

2013Nu329 Action Demanding revocation of disposition of imposition, including corporate tax

AA General Construction Corporation

Head of Public Tax Office

Daejeon District Court Decision 2013Guhap100100 Decided September 11, 2013

December 5, 2013

December 19, 2013

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

On February 6, 2012, the Defendant revoked the part of the imposition of the corporate tax of 2006 by the Plaintiff exceeding the OOOO in the imposition of the corporate tax of 2006.

2. The plaintiff's remaining appeal is dismissed.

3. The costs of litigation shall be borne by the Plaintiff through the first and second trials, while the remainder shall be borne by the Defendant, respectively.

The judgment of the first instance shall be revoked. The defendant's imposition of the corporate tax of 2006 against the plaintiff on February 6, 2012 shall be revoked.

1. Details of the disposition;

A. On January 18, 199, the Plaintiff was a juristic person established for the purpose of civil engineering work, etc., and was dissolved on December 12, 2007 pursuant to Article 520-2(1) of the Commercial Act.

B. On November 2, 200, the Plaintiff entered into a contract with Nonparty BB Co., Ltd. (hereinafter “BB”) and OO also entered into an OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O (hereinafter “instant construction”). On April 2001, the Plaintiff completed the said construction, but did not receive the construction payment (hereinafter “the instant construction payment”).

C. On November 201, 201, the head of the Chungcheong District Tax Office notified the Defendant of the instant obligation to pay the principal and interest of BB to the Plaintiff out of the purchase price of the said land, on the grounds that, in the course of a tax-related field investigation with respect to the key DD involved in the sale of ParkCC-owned land, the representative director of BB, the head of the Chungcheong District Tax Office (BB) around June 2006.

D. On February 6, 2012, the Defendant included the above repayment OOOO as corporate income for 2006 business year in which the Plaintiff did not report, and notified the Plaintiff of the rectification and notification of the corporate tax for the business year 2006.

E. After that, the Defendant changed part of the above determination amount on May 2012, and determined that the principal amount of the payment claim of this case and the remainder of the OOOO members were paid as interest, and that the period for calculating the income amount of the OO members paid as the principal amount of the payment claim of this case had expired on April 2001, when the period for calculating the income amount of the OO members paid as the principal amount of the payment claim of this case, and thus, the period for exclusion of imposition has expired as of February 6, 201, when the construction was completed (hereinafter referred to as the “instant disposition for imposing corporate tax”).

F. On September 14, 2012, the Plaintiff filed a revocation trial with the Tax Tribunal on September 14, 2012, but the Tax Tribunal dismissed the said request on December 5, 2012.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 5, 7, Eul evidence 1, 2, 5 through 7 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The Plaintiff received KRW OO from BB on June 2006 for the repayment of the instant construction cost. Among them, only KRW OOO was appropriated for the principal repayment of the instant construction cost claim, and the remainder was necessary expenses for the receipt of the instant construction cost. As such, the instant disposition is unlawful on the premise that the Plaintiff received KRW OOO as a repayment of interest on the instant construction cost claim.

B. Relevant statutes

Attached Form 1. The entry in the relevant Acts and subordinate statutes are as follows.

C. Facts of recognition

(1) The plaintiff's application for provisional attachment and the plaintiff's claim for construction cost

(A) On October 10, 2001, the application case for provisional attachment No. 2001Kahap540 against BB and its representative director, the Plaintiff: (a) on October 10, 2001, the Plaintiff: (b) on the claim claim of OOO of the instant construction cost claim; (c) OB owned by BB was also subject to provisional attachment order on the 13 lots of land, including OO Ri 467-4m2,294m2, 294m2, on the ground of OOO-gun; and (d) OO owned by BCC, on the ground of OO-gun, OO 49-1,783m2 (hereinafter “instant provisional attachment”).

(B) The Plaintiff filed a lawsuit on the claim for construction cost as Cheongju District Court 2001Kahap3808 due to the instant provisional attachment lawsuit, and sought payment of the total amount of the instant construction cost and the accounts payable by other construction works. On November 11, 2002, during the said lawsuit, conciliation was concluded between the Plaintiff and BB and ParkCC (hereinafter “instant conciliation”).

1. BB and ParkCC shall jointly and severally pay OOO to the Plaintiff until December 16, 2002, and if the payment is not made by the above date, 25% interest per annum shall be added to the above amount from the next day to the full payment.

2.3. (Omission)

4. BB waives against the Plaintiff the repair cost and the compensation for delay arising from the construction of a factory located in the OO-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O.

5. All remaining claims of the Plaintiff are waived.

(2) The Plaintiff’s receipt of the payment of the instant construction cost

(A) ParkE is a person who is delegated by the Plaintiff with the authority to receive the overall progress of the instant construction project and the construction cost, and the scopeD was originally delegated by approximately 10 creditors against BB and ParkCC, as a creditor to ParkCC, with the authority to secure claims from about 10 creditors against BB and ParkCC, and was delegated by ParkCC in 2006 to sell land owned by the ParkCC and process BB and ParkCC’s debt repayment at the price.

(B) On June 2006, ParkE received the instant construction cost from the KD, while the principal and interest based on the instant adjustment occurred in the KOE, the KOE recognized KOE as the legal expenses used by KOD to secure the payment of the instant construction cost, and if the KOE received a later payment from the KOE, the KOE decided to terminate all the instant provisional seizure upon receipt of the KOE. During that process, the KOE demanded the KOE to prepare a receipt for the KOE on the total amount of the land sales claim received by it, and the KOE drafted a receipt for the following contents in the name of the Plaintiff (hereinafter referred to as the “Receipt”).

Receipt

amount of gold: OOOOE (OOO)

Since the above amount was agreed upon by the parties on the provisional seizure case of this case, I will receive the debt amount and statutory interest in order to complete the termination of the provisional seizure.

June 2006

Receipt : The plaintiff representative director SongF

(C) Around June 21, 2006, ParkE found OOOOF from the KD on the part of the Plaintiff’s representative director, who received OOOOOO cards and cash, and did not explain the process of settlement and agreement with the KD, and received the instant construction cost, and issued the FF a written confirmation of the balance of the construction cost of the FOOOF prepared by the said OOOO and BB representative director on April 2001. The EOF settled the FOOF on the part of the FOF under the pretext of the balance of the construction cost, etc.

(D) Around June 22, 2006, Park E-E demanded that Song F be recognized as legal expenses, such as the instant provisional seizure expenses and attorney fees, that it paid the said money by receiving OOOO members from the KD on June 22, 2006. The FF consented thereto.

(E) On June 28, 2006, the Plaintiff cancelled all of the registration of provisional seizure on the ground of the cancellation on June 22, 2006 with respect to five parcels of real estate except the real estate transferred by compulsory sale among the real estate for the purpose of the provisional seizure of this case and the real estate partially rescinded on December 2003.

[Ground of recognition] Facts without dispute, Gap evidence 2, 5, 6, Eul evidence 3 and 4, Eul evidence 3 and 4, Park E-young of the first instance court, the testimony and the purport of the whole pleadings

D. Determination

(1) Confirmation and particulars of the remaining claims for the construction payment of this case

According to the above facts of recognition, Park E-E and KD appears to have agreed on the principal and interest of the claim under the instant protocol concerning the payment of the claim for the construction cost of this case as the OOO on June 2006.

In addition, Park E-E and KD may not clearly distinguish the principal and interest of the instant construction cost and the claims under the instant protocol as stated above as OOO. However, considering the circumstance that the original amount of the instant construction cost claims was determined as OOO under the instant protocol, it is reasonable to deem that the said agreement between Park E-E and KOD was reached as the total amount of OOO which consists of the principal and OOOO members of the instant construction cost and the principal and interest of the instant contracts.

(2) Amount received by the Plaintiff as repayment of the instant construction cost

In full view of the above facts, around June 22, 2006, the Plaintiff received reimbursement from the above OOO members (=OO members accepted by GaE + OO members recognized as the expense of YD).

Although the plaintiff asserts that the plaintiff could not be deemed to have received the above OOOO as a person unrelated to the plaintiff, the plaintiff could not be deemed to have received the payment of the plaintiff. However, considering the following circumstances acknowledged by the facts and the purport of the entire argument as seen earlier, i.e., the plaintiff's assertion that: (a) the plaintiff was actually entrusted not only ParkCC but also the creditors of ParkCC with the business to secure claims; and (b) the plaintiff could not be deemed to have been completely unrelated to the plaintiff, which is the creditor of BB and ParkCC; (c) the plaintiff was deemed to have paid a large amount of expenses to secure claims against BB and ParkCC; and (d) ParkE was delegated with all authority concerning the receipt of the construction payment of this case by the plaintiff as a person delegated with the authority of the plaintiff to receive the construction payment of this case, and prepared the receipts of OOOOOO.

In addition, as the plaintiff asserts that the expenses of the receipt of the construction payment of this case are necessary expenses, the expenses paid by Park E-E are corporeal movables, real estate provisional seizure, and attorney's fees, etc. as revealed by Park E-E's testimony by witnesses of the court of first instance. Such expenses are deemed to have been spent in 2001 and 2002, which raised an application for provisional seizure of this case and a lawsuit on the merits of this case. Thus, the expenses should have been handled at actual expenses, and they cannot be treated as losses because they have been compensated for for the above expenses in 206. Thus, this part of the plaintiff's assertion is without merit.

(3) Appropriation of principal and interest of the instant repayment

As seen above, Park E-E and KD agreed on the remaining principal and interest of the instant construction cost as OOE, and among them, OOE would pay the remainder of the construction cost if there was a surplus of funds. In view of the following circumstances acknowledged by the overall purport of the facts recognized as above and the arguments, i.e., (i) it was not definitely promised to pay the said OE; (ii) there was no time for payment of the said OE and no additional interest agreement on it; and (iii) it appears that the E-E and KD provided OE to GOE to ensure that the claim for the instant construction payment was completed; and (iv) it would be deemed that the E-E and KD would be treated as interest, not the principal, but the interest.

Furthermore, taking account of these circumstances, it is reasonable to view that the principal of the instant construction cost was included in the reimbursement of the instant loan paid to GabE. In particular, as seen in the above recognition, ① ParkE agreed to receive the actual OE from GabE while it received all debt amounts and statutory interest payments for the termination of the instant provisional attachment, ② GabE was paid first from GabD, the amount equivalent to the instant provisional attachment and the principal claim amount, and ③ GabE was paid KRW 0 for its own expenses on June 21, 2006, ③ GabE was paid to 200,000,0000,0000,000,0000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00.

Therefore, there was an implied agreement between the Plaintiff and the KED to cover the principal amount of the instant payments in advance. Therefore, the instant payments should have been appropriated for the repayment of principal and interest OOOO(=OOOOOO - OOOOOO) based on the instant adjustment. However, the instant disposition is unreasonable on the premise that the amount of interest acquired by the Plaintiff is the cause of OOO, and thus it is unreasonable.

(4) Justifiable tax amount

Of the instant reimbursement, the Plaintiff’s interest income in 2006 is an OOE as determined earlier. As such, the reasonable amount of tax calculated accordingly becomes an OOE as indicated in the Plaintiff’s corporate tax calculation statement. Therefore, the portion exceeding the legitimate amount of tax in the instant disposition should be revoked in an unlawful manner, and the remainder is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the plaintiff's appeal is accepted, and the part against the plaintiff corresponding to the part exceeding the reasonable amount of tax among the judgment of the court of first instance is revoked, and the part of the disposition of this case which exceeds the reasonable amount of tax shall be revoked, and the remaining appeal of the plaintiff shall be dismissed as it is so decided as per Disposition.