Seoul Administrative Court 2009Guhap16251 ( October 15, 2009)

Cho High Court Decision 2008Du2701 (Law No. 2009.04.07)

It is reasonable to see that there was a confirmation of the right to income on the basis of the attorney fee agreement.

It is argued that there was oral agreement to postpone the time of payment of attorney fees and the right of income was not determined, but the time of attribution of income is determined unless the amount and time of payment of attorney fees are agreed in writing.

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

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

피고 ☐☐세무서장이 2008. 4. 3. 원고에 대하여 한 2004년 귀속 종합소득세 784,49,130원 및 2005년 귀속 종합소득세 317,517,630원을 각 취소하고, 피고 ▽▽ 세무서장이 2008. 4. 2. 원고에 대하여 한 2004년 1기분 부가가치세 18,122,350원 및 2005년 1기분 부가가치세 7,950,850원을 각 취소한다.

2. Purport of appeal

The same shall apply to the order.

1. Circumstances of the disposition;

A. On March 3, 1998, the Plaintiff is an attorney-at-law, and on March 3, 1998, ○○○○ Development Co., Ltd. located in Japan (hereinafter referred to as “○○○○○○”) filed a lawsuit seeking the payment of 8,345,80,000 UN against ○○○○○○○ (hereinafter referred to as “○○○○”) and appointed the Plaintiff as a legal representative, and did not specifically agree on the attorney’s fees.

B. On May 15, 2001, the △△△△△ was won at the first instance court (U.S. district court 98Gahap5596) but the appeal of the △△△△△△ was made by the △△△△△△△ on July 10, 2002, the Plaintiff and the Plaintiff agreed to pay the Plaintiff the amount of attorney fees by KRW 1 △△△△△△△△△△△ on July 10, 2002, and the Plaintiff paid 2.5% of the principal paid from △△△△△△△△△△△△△△△△△△△△△△△ for the loans case No. 2001Na49144 between △△△△△△△△△○ and △△△△△△△△△△△△△△△△△△△○. ② The time of payment should be within one month from the date on which each principal was paid from △△△△△△△△△△.

C. In the above appellate court on October 31, 2002, the △△△△△△ was paid 6.5 billion UN to △△△△○○○, and among them, the 600 million UN was paid by December 31, 2003 as the interest rate, and the remaining 5.9 billion UN was paid in installments each year from 2004 with a certain interest rate added thereto, and mediation (hereinafter referred to as the “instant conciliation decision”).

D. In addition to the agreement on November 2, 2002, after the completion of mediation at the appellate court, ○○○○○○ shall pay 200 million won in addition to the attorney’s fees in addition to the agreement on November 2, 2002, the said agreement was concluded to the effect that “(i) 1.5 million UN shall be paid in addition to the Plaintiff’s fee, within one month from the date on which ○○○○○○○○ received 60 million in the first payment amount from the Seoul High Court 2001Na49144, and ② ② 50 million UN ○○○○○○○○○ from the date on which the last payment was completed in accordance with the agreement on the loan case’s decision (hereinafter “agreement 2”).

E. On December 19, 2003, in accordance with the instant conciliation decision, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was repaid KRW 63,203,90, as principal on January 21, 2005, and KRW 3,209,707,8555, as principal on March 24, 2005.

바. 피고들은 ◇◇◇◇드 또는 그 채권양수인인 ◁◁◁드가 ☆☆☆☆드로부터 위와 같이 변제받음에 따라 원고의 변호사 수입료로서 제1, 2약정에 따라 변제일로부터 1개월이 경과한 2004. 1. 17.경 원고에게 상환액의 2.5%에 해당하는 금액에 당시의 환율을 적용한 166,930,500원 및 1억 5천만 엔에 대한 당시 환율로 환산한 1,669,305,000원의 소득이 확정되는 등 원고에게 아랜 표 기재와 같이 2004년도에 1,836,235,500원, 2005년도에 825,085,234원의 소득이 귀속 확정 되었고, 2004년 1기 및 2005년 1기에 용역의 공급가액이 위와 같이 각 확정되었음에도 원고 가 당해연도 종합소득세 및 당해분기 부가가치세 신고를 하면서 이를 누락한 것으로 보아, 피고 ▽▽세무서장은 2008. 4. 2. 원고에 대하여 2004년 제1기분 부가가치세 18,122,350원 및 2005년 제1기분 부가가치세 7,950,850원을 부과하였고, 피고 ☐☐세무서장은 2008. 4. 3. 원고에 대하여 2004년 귀속 종합소득세 784,549,130원 및 2005년 귀속 종합소득세 317,517,630원을 부과하였다(이하 위 각 부가가치세 및 종합소득세 부과처분을 통틀어 '이 사건 처분'이라고 한다).

[Ground of recognition] Facts without dispute, Gap evidence 3, 4, Gap evidence 8 to 13, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the Plaintiff made a verbal agreement to change the timing of payment of remuneration under the first and second agreements between △△△△△ in the first and second agreements, which had experienced financial difficulties at the time of October 2003, to December 31, 2014, it shall be deemed that the Plaintiff is deemed to have accrued income on the day (or on the day of receipt in the case of actual receipt of remuneration before it) on which the attorney’s fees are paid in accordance with the modified agreement on the time of payment of remuneration. As such, the instant disposition made on the premise that the modified agreement was not recognized is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) On May 7, 1964, the △△△△△△ was a company operating a golf course business, and established the company on May 7, 1964, which is the large shareholder and the representative director, and operated the said company until the time of the death as the company. In Korea, △△△△△△ established △△△△ at the time of August 22, 1986 in order to operate a golf course. In order to operate a golf course in Korea, △△△ was financed by a financial institution located in Japan and obtained a loan from a financial institution located in Japan to raise funds required for the construction of a golf course by lending it to △△△△

2) After the death of MaapA, there was a dispute over the property between the children of Korea and Japan, and on November 2, 2002, △△△△△△, which was operated by MaapB, did not pay the funds borrowed from △△△△△△△△ was appointed as an attorney on March 3, 1998, and filed a loan claim lawsuit against the Plaintiff, etc. on October 31, 2002 at the appellate court, which was concluded upon the formation of the instant conciliation decision on October 31, 2002, and concluded the first agreement on the attorney fees between the Plaintiff and △△△△△△△△ on July 10, 202, which was the date the lawsuit was concluded, in consideration of all circumstances, such as the Plaintiff’s efforts to resolve the litigation case, and concluded an agreement on November 2, 2002, which shall additionally pay 200 million won in addition to the attorney fees under the first agreement.

3) On the other hand, Do○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ 5.9 billion, upon the instant decision of the instant conciliation on May 16, 203.

4) In such circumstances, the Plaintiff provisionally attached the claim based on the instant conciliation decision of △△○○○○ on July 22, 2004, based on the claim claim amounting to KRW 4 billion as an attorney’s fee claim amount under the Agreement No. 1 and No. 2, 2004.

5) Ultimately, around December 2004, ○○○○○○○○○ agreed to transfer his claim against ○○○○○○○○○○○○○○○○ upon the instant ○○○○○○○○○○○○○○○○ upon the Plaintiff’s request to cancel the provisional seizure of the said claim, and upon the Plaintiff’s request, the Plaintiff rescinded the provisional seizure of the said claim.

6) On March 3, 2005, ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Company agreed to transfer 5.9 billion won to ○○○○○○○○○○○○○○○○○○○ Company’s claim based on the instant adjustment order, and directly pay 5.9 billion won principal and interest thereon to ○○○○○○○○○○○○○○○○○○○○○○○○ Company’s 50,000, which was paid on January 21, 2005 after deducting 236,796,096,096, as principal, and to appropriate 263,203,904N as principal, and 3,209,107,855, and 1,716,394,953 of the remainder principal by June 30, 2009.

7) Pursuant to the above agreement, ○○○○○ was repaid to 3,209,707,855 UN as principal on March 24, 2005.

8) Meanwhile, the Plaintiff was paid Doz. 94,50,000 UN Doz. 94,50,000 from May 2008 to September 31, 2008 with Doz. 156,207,794N from May 2008 to September 15, 2008. On June 15, 2009, Doz. agreed to pay Doz. Doz. to the Plaintiff KRW 79 million from August 28, 2009 upon prompt adjustment of the balance of the attorney’s fees and termination of all obligations. Under the above agreement, the Plaintiff received Doz. 79,00,00 UN as the remainder of the attorney’s fees from Doz., and received Doz. 329,707,794, and received the attorney’s fees from the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 7, 8, 14 through 16, 19 and 20, and the purport of the whole pleadings

D. Determination

1) The right confirmation principle, which is the principle of determining the time when income is attributed under the Income Tax Act, is not the time when income is realized, but the income for the pertinent year is deemed to have been accrued at the time of the occurrence of the right and the income for the pertinent year is to be taxed in advance on the premise that it will be realized in the future. However, in such a right confirmation principle, the concept of "determined" cannot be defined as a general principle that is not an exception to the time when income is attributed. In regard to the former matters, the time when income is attributed should be determined on the basis of whether the income is considerably mature and definite, considering the management and control of income, the degree of the income generated, and the time when the taxpayer is secured, etc. (see Supreme Court Decision 96Nu19154 delivered on June 13, 197).

2) In light of the following circumstances acknowledged by the evidence, it is difficult to believe that the Plaintiff’s oral agreement was made to change the payment period of remuneration under the first and second agreements between ○○○○○○○○ on December 31, 2014, and to change the said payment period into December 31, 2014, the respective items of evidence Nos. 5, 6, 17, and evidence Nos. 18 (Agreement) are difficult to believe, and there was no other evidence to prove that there was a verbal agreement to change the payment period of remuneration under the first and second agreements into December 31, 2014.

① As a lawsuit seeking a loan to △△△○○○ was concluded in a long-term manner out of the expected place, the Plaintiff and △△△△△△△△ was not specifically stipulated in a contingent fee agreement, and concluded the first agreement specifying the amount of attorney’s fees and the timing for payment before the closing of the lawsuit seeking a return at the appellate court, and subsequently, the agreement was concluded to additionally pay the attorney’s fees by specifying the amount and timing other than the amount to be paid under the first agreement when the amount of the instant conciliation decision became final and conclusive.

② Since ○○○○○○ was paid in installments from 2014 to 6.5 billion won in accordance with the instant conciliation decision, the Plaintiff was unable to pay attorney fees pursuant to the first and second agreements to the effect that ○○○○○○○ was paid in a serious liquidity crisis. However, in such a situation, it is difficult to view that the Plaintiff requested the Plaintiff to extend the Plaintiff’s payment period on December 31, 2014 on the ground that the Plaintiff’s obligation pursuant to the instant conciliation decision was completed on or around December 31, 2014 and the Plaintiff’s business was completed.

③ On May 14, 2004, ○○○○○○’s claim based on the instant conciliation order, which was based on the instant order issued by ○○○○○○○○○○○ on the instant order, was seized on July 22, 2004, and the Plaintiff’s claim was provisionally seized on July 22, 2004 as the preserved right, and it is difficult to deem that there was any circumstance to request the Plaintiff to provisional attachment of the claim regarding the attorney’s fees even if the ○○○○○○○○ was likely to hinder the process of agreement with the ○○○○○○○○○.

④ The first and second agreements between the Plaintiff and △△△△ was concluded in writing. On June 15, 2009, the remaining attorneys’ fees and payment dates of the Plaintiff were also specified and made clear in writing, while the agreement on the change of payment timing under the first and second agreements was made orally, it is difficult to believe that the agreement on the change of payment timing under the first and second agreements was made orally, and all written confirmations and agreements were made and delivered after undergoing the instant tax investigation.

⑤ Although the Plaintiff asserted that the time of payment of fees was changed to December 31, 2014, the Plaintiff actually received the attorney’s fees by August 28, 2009, and the Plaintiff, in the evidence No. 19 (Written Claim) claimed the final balance of the attorney’s fees to △△△○○○○○, and drafted a written claim based on the first and second agreements.

3) Therefore, the instant disposition, based on the premise that the supply price of services was determined respectively during the first and first years 2004 and 2005 pursuant to the agreement between the Plaintiff and ○○○○○○○○○, is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition