Cho High Court Decision 2008Du2643 ( November 28, 2008)

When determining the estimated income amount, losses carried forward shall not be subject to deduction.

If the income amount of the relevant year is estimated or determined on account of the absence of the account books kept, it shall not be subject to the loss carried forward deduction.

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

Article 19 (Business Income)

Article 39 (Accretion Year, etc. of Gross Income and Necessary Expenses)

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of global income tax of KRW 34,978,530 on December 31, 2007 and global income tax of KRW 58,670,270 on December 31, 200 and global income tax of KRW 58,670 on December 205 shall be revoked.

1. Circumstances of the disposition;

가. 원고는 2002. 8. 22. 엔화 116,800,000엔(이하 '이 사건 외화부채'라고 한다)을 차입하여 모텔 건물(이하 '이 사건 건물'이라고 한다)을 신축한 후 2003. 1. 1.부터 ○○ 시 △△면 ★★리 53에서 ☆☆☆모텔을 운영하여 온 사업자인데, 2004년 및 2005년 귀속분 종합소득세 확정신고를 함에 있어 이 사건 외화부채에 대한 외화평가손익 및 이자비용, 상환차손익을 손익계산서에 계상하지 아니하고 신고하였다.

B. Accordingly, on December 31, 2007, the Defendant calculated income from the foreign currency debt of this case (125,595,04,164,573,995 won, and 164,573,995 won, 2005) and profit from redemption (2005,8,769,149 won) and included interest expenses (27,000,000 won, 24,256,671 won, and 34,978,530 won, global income tax of 2004, and global income tax of 58,670,270, and 271 won for repayment (hereinafter referred to as the “disposition of this case”).

C. The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on July 10, 2008, but was dismissed on November 28, 2008.

Grounds for Recognition: Facts without dispute, Gap evidence 1, 2, Eul evidence 1, Eul evidence 2-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) According to Article 45 (2) of the Income Tax Act, in calculating the income amount in the taxable period ending within five years from the end of the year in which the loss carried forward occurred, any loss carried forward shall be successively deducted in the calculation of the income amount in the taxable period ending within five years from the end of the year in which the loss carried forward occurred. Thus, from 2002 to 2003, 142,016,819,930 and interest expenses incurred in the foreign currency debts of this case shall be carried forward to 38,819,93 and the income tax belonging to the year in 204 and 205 shall be calculated. ② With respect to the construction of the building of this case, the construction of the building of this case was used for construction payment after obtaining a loan of 30 million won from the Saemaul Treasury on October 13, 2003 and 8 others, and as a result, it was unlawful to pay the interest accrued to the above plaintiff for 205 years and 205 years from September 20, 20004.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination as to the assertion

A) Article 45 (1) and (2) of the Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006) provides that the loss incurred in calculating the business income for the current year shall be successively deducted from the amount of real estate rental income, labor income, property income, date, annuity income, other income, interest income, and dividend in the calculation of the tax base for the current year in the current year by the account book kept and kept by a resident having real estate rental income or forestry income, while the loss incurred in calculating the tax base for each income generated in the current year by income and business income generated in calculating the tax base for the current year pursuant to paragraph (1) shall be deducted in sequence from the amount of income generated in the current year within five years from the date of the end of the year in which the loss carried forward occurred, and therefore, the provisions of Article 45 (2) of the Income Tax Act provides that the amount of income generated in the current year shall not be applied if the resident makes an estimate to deduct the loss carried forward within the current year by calculating the tax base for the current year.

However, according to the purport of subparagraph 2-1 of the evidence No. 2-1 and the whole pleadings, the plaintiff did not report the comprehensive income tax for the year 2002 (the above her mother was operated from January 1, 2003), and with respect to global income tax for the year 2003, the amount of business income for the year concerned is not calculated by the account book kept and recorded by the plaintiff, but the amount of business income for the year concerned is reported pursuant to Article 70 (4) 6 of the Income Tax Act and Article 132 (2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008). Accordingly, in light of the above legal principles, the deficit claimed by the plaintiff is not generated by calculating the business income for the year concerned (203 years) by keeping the account book kept and kept, and it is not subject to the deduction under Article 45 (2) of the Income Tax Act in light of the above legal principles.

Therefore, this part of the plaintiff's assertion is without merit (On the other hand, Article 45 (2) of the Income Tax Act applies to a resident who has income from real estate rental or forest income, and the plaintiff who has no such income must be deducted from a loss carried forward pursuant to Article 45 (1), 5, and 6 of the same Act instead of the above provision. However, Article 45 (2) of the same Act provides that a resident who has income from real estate rental or forest income shall be carried forward for each income in the sense that he does not allow an external aggregate of other income, unlike business income, in the case of a resident who has income from real estate rental or forest income, and the deduction of losses carried forward after deduction pursuant to paragraph (1)

2) Judgment on the argument

The plaintiff's assertion to the effect that the plaintiff used 300 million won as the construction cost after obtaining a loan from community credit cooperatives on October 13, 2003 is without any evidence.

또한, 소득세법 제39조 제1항은 필요경비의 귀속연도에 관하여 당해 필요경비가 확정된 날이 속하는 연도에 귀속하는 것으로 규정하여 권리의무확정주의를 채택하고 있으므로 어느 귀속연도에 필요경비가 발생되었다고 하기 위하여는 단지 성립한 것에 불과한 단계가 아니라 그것이 발생할 의무가 그 실현의 가능성에 있어 상당히 높은 정도로 성숙 확정된 단계에 있으면 되고, 반드시 필요경비가 현실적으로 실현되었을 것까지는 필요 없다고 할 것인바, 갑제3호증의 2, 3의 각 기재에 변론 전체의 취지를 종합하면 이○○ 외 8인은 2002.말경부터 2003.초경 사이에 이 사건 건물 신축공사의 수급인인 사◑◑으로부터 위 공사 중 페인트공사, 도배공사, 단열공사, 유리창호공사 등을 하도급받아 2003. 9. 1. 이 사건 건물의 사용승인 전까지 이를 모두 완료한 사실 및 원고의 대리인인 이◎◎가 2003. 4.경 공사가 중단되자 그 무렵부터 사◑◑을 대신하여 직접 신축공사를 해나가기로 하면서 위 하도급계약도 그대로 인수하여 위 하도급업자들에게 직접 대금의 일부를 지급하기도 한 사실을 인정할 수 있어, 결국 원고의 이○○ 외 8인에 대한 공사대금 채무는 2003.경에 이미 위 하도급계약의 체결 및 인수, 하도급공사의 완료로써 확정된 것이라고 봄이 상당하므로 비록 원고가 위와 같이 확정된 공사대금 채무를 2004.경에 이행하였다고 하더라도 이를 2004년의 필요경비로 귀속시킬 수는 없다.

Therefore, there is no reason for the plaintiff to be dismissed in part.

3. Conclusion

If so, there is no reason for the plaintiff's proposal.