Examination Income 2009-0083 (Law No. 28, 2009)

Timing for realizing rental income;

It is reasonable to deem that the rent income is due and fixed to the extent that the possibility of the claim for the rent is considerably high by concluding the lease contract, and that the revenue equivalent to the rent belongs to the Plaintiff on the date of the payment of the rent.

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

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

Each disposition of imposition of global income tax of KRW 39,662,636 in the business year 2004 and KRW 36,402,02,024 in the business year 2005 against the Plaintiff on November 1, 2008 shall be revoked.

1. Circumstances of the disposition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry in Gap evidence 1-2, Gap evidence 5, Eul evidence 1-3, Eul evidence 4-1 and Eul evidence 4-2.

A. The Plaintiff is a business operator who runs a real estate rental business on the trade name of ○○○○○○○-dong 333-46 to △○○-dong.

B. On September 21, 2004, the Plaintiff entered into a lease deposit amount of KRW 100 million (the contract deposit amount of KRW 10 million on the date of the contract, KRW 10 million on October 30, 2004, KRW 15 million on the remainder of KRW 90 million on October 30, 2004, KRW 2,394,000 ( separate value added tax), and KRW 139,000 on September 21, 2004 from September 21, 2004 to September 2005 (the lease contract amount of KRW 10,000 on the date of the contract), and KRW 2,394,00 (value added tax); and KRW 2,000 on the lease contract amount of KRW 10,000 on the date of lease from September 21, 204 to September 205).

C. The Defendant confirmed the following facts: (a) the Plaintiff entered into the instant lease agreement with the Nonparty Company; (b) the Plaintiff was transferred the name of the patent and utility model right owned by the Nonparty Company to secure the remainder of the lease deposit and rent, etc. that the Plaintiff did not receive from the Nonparty Company; and (c) the Plaintiff did not report real estate rental income amounting to KRW 70,481,424 in 2004; and (d) the Plaintiff did not report real estate rental income amounting to KRW 70,818,740 in 205 under the instant lease agreement; and (e) on November 1, 2008, the Defendant corrected and notified the Plaintiff of the comprehensive income tax amounting to KRW 39,62,636 in 204 in 204; and (e) on November 36, 2005, 402,024 in total (hereinafter “instant disposition”).

D. Accordingly, the Plaintiff filed an objection against the instant disposition on January 6, 2009, but the objection was dismissed. On June 10, 2009, another request for examination was filed on June 10, 2009, but the request for examination was dismissed on August 28, 2009.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) On September 21, 2004, when the Plaintiff entered into the instant lease agreement, the Plaintiff allowed the use of the key leased part at the request of the non-party company that the Plaintiff should install an artificial park, but thereafter, the non-party company did not pay the Plaintiff the remainder of the lease deposit and the rent. Accordingly, the Plaintiff closed the entrance of the key leased part and prevented the Plaintiff from moving into the non-party company by closing the door of the key leased part. As such, the instant lease agreement was revoked, and thus, the instant lease agreement does not exist from the beginning.

2) The Plaintiff did not receive the remainder of the lease deposit and the rent, etc., and the patent and utility model rights offered as security have no economic value. However, the Plaintiff did not have any income accrued from the instant lease contract, such as extinguishment by the Nonparty Company due to its failure to pay patent fees.

3) Therefore, it cannot be deemed that the Plaintiff leased the key part to the non-party company, and it cannot be said that there was an income. Nevertheless, the instant disposition is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in Gap evidence Nos. 3, 4, 5, and Eul evidence Nos. 3 and 5.

1) On June 7, 2004, the Plaintiff entered into a lease agreement between the non-party company and the non-party company on KRW 84,00,00,000 for deposit for lease, KRW 20,755,00 for each month of rent, management expenses (excluding value-added tax), KRW 588,00 for each month, and the lease period from July 8, 2004 to July 7, 2005; but if the rent is in arrears for at least three days, the Plaintiff was paid damages for delay at the rate of KRW 2.5% for the lease (hereinafter referred to as the "previous lease agreement"), and on the same day, paid KRW 10,000 for down payment from the non-party company as down payment, and received KRW 10,000 for the remaining lease deposit from the non-party company on July 7, 2004 to use it from the non-party company from July 84 to that time.

2) After that, on September 21, 2004, the Plaintiff entered into the instant lease agreement with the non-party company and received KRW 10 million from the non-party company as contract deposit on the same day, and the non-party company began to use the leased portion from time to time.

3) However, the non-party company paid only rent and management expenses until October 2004 under the previous lease agreement to the Plaintiff, and delayed payment of the remainder of the lease deposit under the previous lease agreement and the instant lease agreement and the remainder of the lease deposit under the instant lease agreement.

4) Around February 2005, the Plaintiff, instead of delaying the payment of the above accounts until May 20, 2005, the Plaintiff agreed to provide the Plaintiff with the patent right and utility model right owned by the non-party company as collateral, and on May 20, 2005, the non-party company agreed to pay 418,796,035 won, including the remainder of the lease deposit, the management fee, the damages for delay, and the principal and interest of KRW 100,000,000,000,000,000,000,000 won as stated below, to pay damages for delay at the rate of 1.5% per month if the payment is delayed (hereinafter referred to as the “agreement”).

5) On February 23, 2005 and February 24, 2005, the Plaintiff completed the registration of transfer of the patent right and utility model right provided as security by the non-party company in the name of the Plaintiff.

6) On March 10, 2005, the Plaintiff sent a notice to the non-party company on March 10, 2005, stating that the non-party company was aware of the fact that the Plaintiff immediately opened and used the leased portion after the agreement of this case. Thus, the non-party company paid a total of KRW 172,463,542, such as overdue rent, etc. under the previous lease agreement and the lease agreement of this case, and at the same time, sent a notice to the non-party company by content-certified mail stating that the above 84 square meters and the leased portion should be delivered to the non-party company by March 20, 2005.

7) Afterwards, the Plaintiff filed a lawsuit against the non-party company seeking delivery of the key part of the above 84 square meters and the part of the leased part and payment of the money by the instant agreement. On January 27, 2006, the above court rendered a judgment in favor of the Plaintiff on the ground that the previous lease contract and the instant lease contract were lawfully rescinded in accordance with the Plaintiff’s application for extension of claim and change of claim cause of claim as of July 6, 2005, under which the previous lease contract and the instant lease contract were terminated on the ground of the following reasons: (a) the above judgment became final and conclusive on February 21, 2006.

D. Determination

1) Whether to lease the key part of the lease

The following circumstances can be acknowledged in light of the above facts: (i) even if the Plaintiff’s assertion is based on the Plaintiff’s assertion, the Plaintiff received KRW 10 million on September 21, 2004 from the first day of the lease term, and delivered the key part of the lease to the Nonparty Company so that the Plaintiff may build a test for the key lease at the request of the Nonparty Company; (ii) the Plaintiff determined the starting point of the overdue rent and delay damages, etc. as of September 21, 2004 upon the agreement between the Nonparty Company on the premise of the validity of the instant lease; (iii) the patent right and utility model right owned by the Nonparty Company were transferred under the Plaintiff’s name; (iv) the Plaintiff explicitly stated that the Plaintiff was using the key part immediately after the agreement in this case; and (d) the Plaintiff did not file a civil lawsuit against the Nonparty Company on the premise that the lease contract in this case and the agreement in this case were valid; and (e) the Plaintiff did not claim that the lease contract in this case was terminated by Nonparty Company 201.

2) Whether the income has occurred or not

In order to ensure that income subject to income tax has been realized, it is not necessary to realize the income in reality, and a mature and final maturity is adequate to the extent that the possibility of realizing the right to generate income is considerably high (see, e.g., Supreme Court Decision 2001Du7176, Dec. 26, 2003).

The Plaintiff entered into the instant lease agreement with the non-party company on September 21, 2004. As seen earlier, it is reasonable to deem that the Plaintiff entered into the instant lease agreement with the non-party company, which is subject to the disposition of this case, that the Plaintiff’s real estate rental income, which is subject to the disposition of this case, has been reverted to the Plaintiff on the date of the payment of the rent, after which the Plaintiff became final and conclusive to the extent that there is considerable possibility of realizing the relevant rent claim. Moreover, solely on the grounds that the Plaintiff was unable to receive rent, etc. under the instant lease agreement from the non-party company, or that the patent right and utility model right of the non-party company, which was provided as security by the non-party company, were nonexistent and extinguished, there is no economic value of the patent right and utility model right of the non-party company, which is subject to the disposition of this case, and there is no objective possibility of realizing the rent income in 204 and 2005, which is subject to the disposition of

3) Sub-decisions

Therefore, the defendant's disposition of this case is legitimate, and the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

shall be ruled.