Supreme Court Decision 2012Du28339 (No. 23, 2016)

In principle, the receipt date of other income shall be the date of receipt.

In principle, the receipt date of other income shall be the date of receipt.

Article 50 of the former Enforcement Decree of the Income Tax Act

Seoul High Court 2016Nu645

Park ○

○ Head of tax office

Supreme Court Decision 2012Du28339 Decided June 23, 2016

2017.030

2017.04.20

1. The plaintiff's appeal is dismissed.

2. The plaintiff shall bear the total costs of the lawsuit after filing the appeal.

The judgment of the first instance court is revoked. The Defendant’s imposition of global income tax of KRW 00,000,000 for the year 2004 against the Plaintiff on March 1, 201 and the imposition of KRW 00,000 for global income tax of KRW 00,000 for the year 207 is revoked.

1. Partial citement of judgment of the first instance;

이 법원이 설시할 이유 중 "1. 처분의 경위"부터 "2. 주장 및 판단, 가. 원고의 주장"까지 부분은 제1심 판결의 이유 중 해당 부분(제2� 제3행부터 제7쪽 제11행까지)기재와 같으므로, 행정소송법 제8조 제2항, 민사소송법 제420조 본문에 의하여 이를 인용한다.

2. Parts that vary from the judgment of the first instance court;

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

Income tax is imposed on a person who is deemed to have the ability to pay a taxpayer when it controls, manages, or takes over a certain economic benefit, notwithstanding the nature and effect under private law. Thus, even if certain income is deemed to accrue under private law, if it is merely an accounting, reputation, and real economic profit cannot be controlled, managed, or taken over, and is not deemed to have the ability to pay income tax, income cannot be deemed as subject to income tax. In cases where a debtor transfers a claim in lieu of payment of the principal and interest on the original claim to a creditor as a penalty or compensation due to nonperformance of the obligation, with an intention to revert the amount exceeding the principal and interest on the original claim to the creditor as a result of the repayment of the obligation, even though the value of the claim transferred by the debtor is changed, the creditor still remains in a situation where the debtor and the bond face value were not obtained with the actual and final satisfaction of the claim, and as such, Article 50(1)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890, Feb. 28, 2007) provides for the original claim to be transferred by transfer of another claim.

Examining the facts acknowledged earlier in light of the aforementioned legal principles, the LA transferred the key claim of this case in lieu of the repayment of the existing obligation, with the intention to vest the amount exceeding the principal of the existing claim in the value of the key claim of this case in the penalty or compensation for default, which is the intention to vest the plaintiff and AB in the repayment of the existing obligation. Thus, on July 24, 2000, when the effect of the transfer of claim in lieu of the repayment of the obligation became effective, it cannot be deemed that there was any other income from the existing claim. Among the value of the key claim of this case collected by the plaintiff and AB in reality, the time of receipt of other income from the existing claim in excess of the principal of the existing claim shall be deemed to be March 20, 204 and June 14, 2007, on which the plaintiff and AB received money based on the key claim of this case or receive the dividend in accordance with the confirmation of the distribution schedule of the compulsory auction procedure. Therefore, each of the dispositions of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit.