Seoul Administrative Court-2012-Gu Partnership-39216 (Law No. 14, 04.04)

Whether the decision on interest income is unlawful

The time of attribution of interest income under the Income Tax Act shall be determined on the basis of whether or not the possibility of interest income is considerably mature and confirmed in consideration of the management of the interest income concerned. The argument about the plaintiff's appropriation of agreement and the time of confirmation of interest claim is without merit.

Article 45 (Receipt Date of Interests)

2014Nu4179 Revocation of Disposition of Imposing global income tax, etc.

- Appellants

Hab○

○ Head of Tax Office and 3

Seoul Administrative Court Decision 2012Guhap39216 decided April 4, 2014

November 11, 2014

December 2, 2014

1. Purport of claim

On January 12, 2011, Defendant AA director of the tax office cancels the imposition of KRW 000, the aggregate of the global income tax for the year 2005, the global income tax for the year 2006, the global income tax for the year 2007, the global income tax for the year 2007, and the global income tax for the year 2008, and the tax amount for the global income tax for the year 2008, and Defendant AAA director of the tax office has revoked the imposition of KRW 00,000, the aggregate of the value-added tax for the Plaintiff on January 1, 201, and the tax office director of the tax office, as shown in the attached Table 1, with respect to the Plaintiff on January 12, 2011.

2. Purport of appeal

In the judgment of the court of first instance, the plaintiff must cancel the part against the plaintiff, and the decision that the defendant ○○ Tax Office revokes the imposition of the total of 000 won of the global income tax for the year 2005, 000 global income tax for the year 2006, 000 global income tax for the year 2007, and 000 won of the global income tax for the year 2008, and 200 won for the global income tax for the year 2008, and the head of the AA Tax Office revokes Tax Office revokes the imposition of 00 won for the plaintiff on January 1, 201, and on January 12, 2011, the tax office of 00 won for the aggregate of the value-added tax as shown in the separate sheet 1.

The defendants: The judgment of the court of first instance that the part against the defendants is revoked, and that the plaintiff's claim corresponding to the above revoked part is dismissed.

1. Quotation of judgment of the first instance;

"This court's explanation on this case is the same as the part of the reasoning of the judgment of the court of first instance, except for the following, among the reasons why this court's explanation on this case, and the part that was used in the judgment of the court of first instance as to the claim related to ○○○○, the part that was used in the judgment of the court of first instance as stated in Article 8 (2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act, and Article 420 of the Civil Procedure Act."

A. Judgment on the argument related to gambling ○○

A) Determination on the first argument

The following circumstances are revealed in addition to the overall purport of the arguments and facts established in the previous trial. ① there is no evidence to acknowledge that there was an agreement on the order of repayment repayment between the Plaintiff and Park Poe-○. In the absence of an agreement on the order of appropriation appropriation, expenses, interest, and principal shall be appropriated in the order of appropriation under Article 479 of the Civil Act, and in the order of the original payments. ② The plaintiff asserted that Park Il-○ calculated the principal amount of KRW 00,000 when he paid 00 on July 17, 2009, but there is no evidence to recognize this as 00, and ③ Park○-○ was presented to the effect that the principal was reduced at an annual interest rate of 5% from January 1, 2006 in the instant lawsuit, and that there was no other evidence to support that ○○○○○ had first been appropriated for the interest payment to the plaintiff, and that there was no other reason to support that ○○○ had first been appropriated for the interest payment between the plaintiff and the plaintiff.

B) Judgment on the second argument

(1) Article 39 (1) of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008) provides that "the year to which the total income amount and necessary expenses of a resident belong shall be the year in which the date when the total income amount and necessary expenses are determined," and Article 24 (3) of the Income Tax Act provides that "necessary matters concerning the scope, calculation or final determination of the amount received or to be received in calculating the total income amount shall be prescribed by Presidential Decree," and Article 45 subparagraph 9-2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21025 of Sept. 22, 2008) provides that "in case of interest income and interest income, the date of receipt of the total income amount shall be the interest payment date under the agreement, and where interest income is paid without an agreement or before the payment date under the agreement, the period to which the interest income income under the Income Tax Act reverts shall be determined by considering the following circumstances such as the period of management of the interest income in question and the extent of 20.

① As seen earlier, the Plaintiff filed the instant lawsuit with the purport that “The interest rate was lowered by 5% per annum from January 1, 2006 against the Plaintiff on August 20, 2008.” However, as seen earlier, the Plaintiff appears to have continuously appropriated the interest income of 2,500,000 won on August 29, 2006, and 2,50,000,000 won on November 2, 2007, and less the interest income of 1,00,000,000 won from the loan including the interest income of 2,50,000,000 won from August 20, 2008 (as seen in the above, the amount repaid to the Plaintiff by 0,000,000 won from January 1, 20, 200, and the interest income of 205, which was repaid to the Plaintiff pursuant to Article 479(1) of the Civil Act, and the interest income of 2005.

② On December 20, 2005, the letter of confirmation was written to the effect that “The principal and interest of 00,000 won borrowed at that time until ○○ was 9,428,00,000 won,” and that “the principal and interest of 8,105,00,000 won borrowed until January 31, 2006 are 8,105,000 won,” and that “the principal and interest of 6,860,000,000 won as of November 2, 207 are 6,860,000,000 won,” each of the above deed and each statement appears to have been written in combination with the principal and interest of 0,000 won, and that the Plaintiff’s judgment was 10,000,0000 won as of January 31, 206 and 20,000 won as of 10,007,000 won, excluding the Plaintiff’s principal and interest.

4) Determination

A) Unlike the Corporate Tax Act, Article 51(7) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21765, Oct. 1, 2009); unlike the Corporate Tax Act, Article 51(7) of the former Enforcement Decree provides that the Income Tax Act does not provide an institutional device to reflect the amount of interest income as an item for deduction of interest income even if the amount of loss was incurred due to the failure to recover the principal for the last time; thus, it appears to be a provision to prevent unfair result of imposing interest income; the above provision provides that the entire amount collected by the time a specific cause for recovery occurs until the final return of the tax base or the determination and correction of the tax base and tax amount is below the principal amount; the existence of interest income under the Income Tax Act does not include special exceptions; it is difficult to discuss whether the principal claim is possible to recover the interest income accrued from the source of the income accrued; and the final return on tax base for non-permanent interest income or final return on tax base, and the determination and correction of tax base and tax amount can not be recovered until 20.

나) 살피건대，원고가 2008. 3.경 김○○에게 500,000,000원을 대여하였고，2008. 4.부터 2008. 10.까지 김○○으로부터 이자 90,000,000원을 변제받은 사실，원고는 2009. 7.경 김○○으로부터 원금 400,000,000원을 변제받으면서 원금과 이자를 모두 탕 감한 사실은 앞서 본 바와 같고，앞서 인정한 사실에 더하여 갑 제1〇, 11호증，을 제21호증의 1, 2의 각 기재에 변론의 전 취지를 종합하여 보면，김○○이 2009. 7. 이후부터 2013. 7.까지 총 5회에 걸쳐 필리핀을 방문한 사실，원고와 위 대여금의 공동대여자가 김○○의 연대보증인들 소유 부동산에 대하여 경매를 신청하거나 근저당권을 설정하였 다가 해지한 사실，최저매각가격으로는 압류채권자의 채권에 우선하는 부동산의 부담 금과 절차비용을 변제하고 남을 것이 없다는 이유로 위 경매절차가 취소된 사실이 인정되는바，이러한 사실들을 종합하여 보면，김○○이 위 확인각서를 작성한 2009. 7. 이후 필리핀을 방문한 횟수와 기간에 비추어 김○○이 여전히 필리핀에서 카지노 사업 을 추진하고 있다고 보기는 어렵고，연대보증인들에 대하여 채권 회수절차가 제대로 진행되지 않았는바，원고의 김○○에 대한 채권은 채무자의 사업의 폐지로 인하여 회 수할 수 없는 채권으로 채무자 또는 제3자로부터 회수한 금액이 원금에 미달하는 경우 에 해당한다고 할 것이다. 따라서 원고의 이 부분 주장은 이유 없다.

3. Conclusion

Therefore, the plaintiff's claim against the defendant ○○ Tax Office is justified within the above scope of recognition, and the plaintiff's remaining claim against the defendant ○○ Tax Office and the plaintiff's claim against the defendant ○○ Tax Office, BB Tax Office, andCC Tax Office are dismissed as it is without merit. The judgment of the court of first instance is just and it is so decided as per Disposition.