early 2007west4222 ( December 28, 2007)

Profit from the forward exchange transaction of the swap deposit shall not be deemed as interest income.

Income from the forward exchange transaction of the swap deposit is similar to the interest of the deposit, and cannot be deemed as interest income in the nature of the consideration due to the use of the money.

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

1. The defendant's collection of each global income and disposition listed in the separate disposition list against the plaintiffs shall be revoked.

2. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

A. From 2003 to 2004, the plaintiffs entered into a gift exchange contract (hereinafter referred to as the "securities exchange contract of this case" and the "securities exchange contract of this case") under which the plaintiffs paid won currency to the Seocho Bank, and (1) the plaintiffs deposit the United Nations currency exchanged from the won currency, and (2) receive interest at the end of 0.25% prior to and after the maturity, and return the principal and interest at maturity (hereinafter referred to as the "the deposit contract of this case" and "the deposit transaction of this case"), and (3) at the maturity of the above international currency deposit contract, the parties sold the principal and interest of the UN currency deposit at the rate of exchange agreed in advance to the Seocho Bank and receive compensation in Korean won (hereinafter referred to as "the above contract of this case and transactions arising from the above contract of this case", and hereinafter referred to as the "securities exchange transaction of this case").

B. The △ Bank considered the interest income under the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006, hereinafter referred to as the "Income Tax Act"), among the interest arising from the instant transaction, as the interest income from the instant transaction, and did not withhold the tax on the premise that the portion arising from the instant futures exchange transaction was not an interest income.

C. The Defendant imposed global income tax (including additional tax on the return and payment in good faith) on the grounds that the profits from the gift exchange transaction of this case also constitute interest income, and on the Plaintiffs, such as the tax amount initially imposed on each of the Plaintiffs listed in the separate disposition list (hereinafter referred to as “the initial imposition disposition”).

D. On December 28, 2007, the plaintiffs filed an appeal against the above initial imposition disposition with the National Tax Tribunal, and the National Tax Tribunal decided that the plaintiffs excluded the portion of the return and additional payment for the reason that the plaintiffs did not return and pay the comprehensive income tax on the profits arising from the gift exchange transaction in this case, and the above initial imposition amount should be corrected. Accordingly, the defendant reduced the return and additional payment for the plaintiff ChoiA and KimB from each initial notice tax listed in the separate disposition list, and reduced and corrected the original imposition amount like the remaining tax amount listed in the same list (hereinafter the "each disposition in this case").

[Reasons for Recognition: Facts without dispute, Gap evidence 1, Eul evidence 2, Eul evidence 1 to 4, Eul evidence 2-1, and Eul evidence 2, and the purport of the whole pleadings]

2. Whether the disposition is proper; and

A. The plaintiffs' principal

(1) The instant transaction consists of two separate trades, i.e., the instant forward exchange transaction, and the instant deposited transaction. The benefits arising from the instant deposited transaction fall under interest income as stipulated in Article 16(1)3 of the Income Tax Act, but the benefits arising from the instant forward exchange transaction do not fall under the consideration for monetary use as a profit from foreign exchange transaction. Thus, in light of the principle of no taxation without law and the principle of substantial taxation, the income similar to the income as stipulated in Article 16(1)3 of the Income Tax Act does not fall under “income as stipulated in Article 16(1)13 of the Income Tax Act.”

(2) The pertinent forward exchange transaction is not only a foreign exchange trading profit, but also a self-financial common nature, and the instant forward exchange transaction is not reserved by the parties, unlike a repurchase agreement of bonds or securities, so the repurchase right is not reserved between the parties. Thus, under the principle of no taxation without law and the principle of substantial taxation, income similar to income under Article 16(1)9 of the Income Tax Act does not constitute income under subparagraph 13 of the same paragraph.

(3) Even if the gains from the forward exchange transaction of this case fall under the income stipulated in Article 16 (1) 13 of the Income Tax Act, in light of the fact that, since around 2002, most commercial banks, including △ Bank, dealing with the currency exchange deposit, which were exempt from taxation on the profits from the forward exchange transaction, the defendant did not take it as taxable until the time of each disposition of this case, and that at the National Tax Counseling Center, it responded to the purport that the gift exchange transaction of this case is not subject to taxation on the question as to whether the profits from the forward exchange transaction of this case are subject to taxation on September 2003, each disposition of this case violates the principle of trust protection.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) From 2002 to explain to customers the name of the "NE Exchange Deposit" in the name of the "NE Exchange Agreement", the Pacific Bank: (a) made public relations and sale in comparison with the ordinary deposit; (b) made a foreign currency deposit agreement with the Bank after the Bank paid the Korean won to the Bank; and (c) made an application for foreign currency deposit transaction with the Bank at the same time as the maturity of the UNCITRA; and (d) entered into a gift exchange agreement with the Bank at the maturity of the exchange rate fixed at the maturity of the exchange rate (the fiscal exchange rate calculated as follows) on the basis of the UN/original rate of exchange (the rate of exchange calculated as follows) at the maturity; and (c) concluded a gift exchange agreement with the Bank to sell the United Nations at the fixed rate of exchange (agreement rate).

(2) According to the instant transaction, customers changed their own Korean won into the United Nations, and the △△△ bank deposit interest on the deposit at maturity is rare, but the gift redemption profits based on the agreed futures exchange rate already agreed at the time of conclusion of the contract (in Korean won, the rate of 3% per annum at the time of conclusion of the contract) is obtained. Accordingly, the gift redemption profits under the Income Tax Act are similar to the fixed rate of deposit in Korean won, and the gift redemption profits under the Income Tax Act are non-taxable, so it could be secured to secure high profits compared to the fixed-term deposit in Korean won.

(3) Since the UN/original futures exchange market had not existed in the Republic of Korea until May 29, 2006, △△ Bank concluded a gift exchange rate calculated by dividing the exchange rate of USD 100 on a daily basis by the gift exchange rate of USD 100, which is published at the time of the instant transaction from ○○ Korea Co., Ltd., and KRW 100,000, and KRW 200,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,000,000,000,000,000,000,000,000,00,000,00.

(4) In the event that, while running the instant transaction, there is no separate declaration of intention from the customer on the re-agreement before maturity, △ Bank automatically terminated the Universal Regular Deposit Agreement and a futures exchange contract and made it deposited into the customer account designated in advance, and upon termination of the Universal Regular Deposit Agreement, the gift exchange contract also terminated.

[Grounds for Recognition: Facts without dispute, Gap 2 through 6's 1 to 5, Gap 7's 1 and 2, Gap 8's 1 to 3, Gap 10 and 14, and Eul's 5's 1, as a whole, the purport of the whole pleadings]

D. Determination

(1) The Income Tax Act provisions

Article 16 (1) 3 and 9 of the Income Tax Act lists interest and discount amounts of deposits (including installment savings, installments, deposits, and postal transfers) and bonds or securities prescribed by the Presidential Decree as interest income, and establishes new subparagraph 13 on December 31, 201, which are similar to the income under subparagraphs 1 through 12 on the basis that the income in the nature of the consideration for the use of money is also included in interest income, and takes a tangible comprehensive principle in determining interest income subject to taxation.However, the Income Tax Act only imposes income tax on the income prescribed by the law, and does not impose tax on income not listed as taxable income such as foreign exchange trading profit arising from exchange rate difference in foreign exchange transactions.

(2) Whether the interest on a valuable deposit and similar income arising from the forward exchange transaction in the instant case fall under the interest income that has the nature of the consideration following the use of money

(A) Unless there are special circumstances, such as that the transaction form taken by the parties concerned is the act to avoid the burden of tax, and that the above act constitutes the disguised act, it shall be deemed valid, and in order to deny it, there is a need for specific legal basis in light of the request for legal stability or predictability of the no taxation without the law to protect taxpayers from the persons with power (see Supreme Court Decision 90Nu3027, May 14, 191).

In full view of the following circumstances revealed from the purport of the aforementioned facts and the entire pleadings, it is difficult to view the instant futures exchange transaction merely constitutes a disguised act, or it is difficult to view the instant transaction as merely a single won deposit transaction using the form of foreign currency regular deposit and futures exchange transaction, and rather, it is reasonable to view that the instant transaction was effective as a separate legal act, respectively.

① The Plaintiffs did not specifically recognize the structure of the instant transaction or the actual condition of the futures exchange transaction at the time of entering into the instant transaction contract with the △ Bank, but at least, they came to the instant transaction with the awareness that foreign exchange profits under the Income Tax Act are exempt from taxation, and thus, they may obtain tax revenues higher than general deposits through futures exchange transactions. Therefore, it cannot be deemed that there was an express or implied agreement between the Plaintiffs and △ Bank that a gift exchange contract was concluded only formally, and that the fact that it was invalid between the parties.

② At the time of the instant transaction, the Plaintiffs: (a) prepared in a separate document a written application for foreign currency deposit transactions and a forward exchange agreement; and (b) separately concluded the instant deposit contract and a forward exchange agreement; and (c) the agreed exchange rate applied to the instant forward exchange transaction is not arbitrarily determined by △ Bank, but determined by reflecting the actual forward exchange rate in each foreign exchange market at the

③ In the event that there is no separate declaration of intention on the reorganization agreement from the customer before maturity while selling the UN swap deposit, ○○ Bank made it possible to deposit into the customer account designated in advance by automatically terminating the UN prescribed deposit contract and forward exchange contract, and when cancelling the UN regular deposit contract, it seems that the gift exchange contract of this case is closely combined with the contract of this case for the purpose of achieving the UN currency swap deposit transaction.

④ The final determination of profits and losses to be gained by the parties to a transaction according to the futures exchange rate and the spot exchange rate at the time of conclusion of the contract is reasonable in light of the general futures exchange transaction, and in particular, as at the time of conclusion of the contract, those who wish to sell an object during the due period, as at the time of the contract of this case, are determined definitely to obtain profits during the due date in cases where the futures exchange rate is higher than the spot exchange rate at the time of conclusion of the contract of this case, i.e., the UN/N swap point at the time of conclusion of the contract of this case, and it is difficult to view that the profits gained from the transaction of this case of this case of this case of the plaintiffs are conclusive. In addition, the meaning that the gift exchange rate at the time of conclusion of the contract of this case is higher than the spot exchange rate at the time of the contract of this case, and it is difficult to view that there is no risk of exchange at all, because the gift exchange rate at the time of conclusion of the contract is less than the spot exchange rate at the time of the contract.

⑤ In the instant case, there is insufficient evidence to support the fact that the △ Bank engaged in the instant transaction in order to avoid exchange risk. However, whether to engage in the instant transaction in order to avoid risk, and whether to avoid exchange risk without having engaged in the instant transaction is a matter of choice by the financial institution according to the situation and prospects of the foreign exchange market, and even if there was no big transaction related to the instant transaction, it is not a circumstance that may affect the nature of the instant transaction.

6. Generally, interest refers to the money received or its substitute in proportion to the original amount and the lending period by lending money, and the profits earned by the Plaintiffs from the forward exchange transaction in this case are not proportional to the previous period, and the amount and the period of the transaction are the same, respectively, depending on the agreed futures exchange rate at the time when the said transaction takes place.

7) Since the Bank was paid in Korean won at the maturity of most customers at the time of the instant transaction. However, according to the evidence Nos. 13-1 through 5, the Bank entered the instant deposit contract into and stated that the deposit amount was included in the UN currency account and all kinds of books including financial statements, etc., and accordingly, it is recognized that the UN currency deposit from around 2003 to around 2004, which was at the time of the instant transaction on the foreign currency balance sheet of the Seocho Bank, was larger than that of 2002, and therefore, it is difficult to readily conclude that the Seocho Bank was operating the Korean won currency fund by deeming that the Korean won fund paid from customers, unlike the above books, in violation of the general corporate accounting principles and the guidelines for deposit management.

(B) When a taxpayer engages in economic activities, in order to achieve the same economic purpose, one of the several legal relations may be selected by taking into account the efficiency of achieving its objectives and the degree of the burden of relevant expenses, such as taxes, and the tax authority shall respect the legal relations chosen by the parties, except in extenuating circumstances (see Supreme Court Decision 2000Du963, Aug. 21, 2001).

As seen earlier, it is reasonable to view that all transactions constituting the instant futures exchange contract and the instant futures exchange contract were effective as separate legal acts, and that the content and scope of taxes are individually determined in accordance with their legal relations. There are circumstances such as the instant futures exchange contract closely incorporated with the instant deposit contract, and that the Plaintiffs less than the time when they entered into a general deposit contract and received interest by taking such transaction form. However, any transactions do not require the same treatment under the tax law despite the difference in legal form (if there is a problem as to the legality of taxation disposition on the income before the establishment of paragraph (3) due to the amendment of Article 14 of the Framework Act on National Taxes on December 31, 2007). It is reasonable to view that the benefits accrued from the instant futures exchange transaction are not a kind of foreign exchange profits, and that the profits accrued from the instant futures exchange transaction are not a kind of foreign exchange profits, and the profits accrued from the use of money is not a consideration for the use of money, which is similar to the interest of deposits.

(3) Whether profits from the instant futures exchange transaction constitute interest income in the nature of the consideration for the use of money, as income similar to trading with repurchase/back agreement of bonds or securities

Article 16 (1) 9 of the Income Tax Act and Article 24 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010) stipulate interest income as a kind of interest income under the premise that the gains from repurchase and repurchase are profit margins or securities. However, in the case of marginal profits from repurchase agreements under Article 16 (1) 9 of the Income Tax Act, compared to other interest income listed in each subparagraph of Article 16 (1) 9 of the Income Tax Act, in essence, the nature of the consideration for use of money is weak, and in light of the fact that Article 16 (1) 9 of the Income Tax Act and Article 24 of the Enforcement Decree of the same Act limit the scope as interest income, it is reasonable to deem that the expansion of the target bonds or securities to foreign currency can not be permitted under the principle of no taxation without law, even if Article 16 (1) 13 of the Income Tax Act is provided in the form of a type of comprehensiveism.

(4) Sub-determination

Therefore, if the profits arising from the gift exchange transaction of this case come to fall under the interest income stipulated in Article 16 (1) 13 of the Income Tax Act, it is illegal that the disposition of this case is not necessary for the plaintiff to live in the place of money of the plaintiff.

3. Conclusion

Since the plaintiffs' claims are well-grounded, they are valid.