대여원리금의 회수불능시의 이자소득- 대법원 2013. 9. 13. 선고 2013두6718 판결 평석 -

Abstract

Enforcement Decree of Income Tax Act Article 51 (7) before February 21, 2014 says that "In calculating the total income from profits made from a non-business loan under Article 16 (1) 11 of the Act, if the whole or part of the principal and interest is irrecoverable from the debtor or a third party because the relevant non-business loan falls under bonds pursuant to Article 55 (2) 1 or 2 before a final return on tax base under Article 70 of the Act or determination or correction of tax base and the amount of tax under Article 80 of the Act, the total amount of income shall be calculated by subtracting the principal first from the amount recovered. In such cases, if such amount recovered is short of the principal, the amount of gross income shall be deemed nonexistent."In relation to the scope of the above clause, it matters whether the clause applies only to the relevant tax period which the debtor's bankruptcy has occurred or to the whole tax periods from the tax period which creditor loaned the money until the tax period which irrecoverable things have occurred. Supreme Court’s 2013 du decision decided on September 13, 2013 rules that whether things which can not recover the whole or part of the principal in a non-business loan have occurred must be judged at the time of a final return on tax base under Article 70 of the Act or determination or correction of tax base and the amount of tax under Article 80 of the Act, not at the time of a revenue of interest. However, the above decision's view is not in harmony with the legislative purpose of the above clause, the principle of ascertained claim and the rule of period taxation. The above decision may think that an assessment of interest income to the taxpayer who has not recovered a whole or part of principal is harsh and disregards actual tax-bearing capacity. But since this result derives from the interest income's character which denies a concept of loss from bad debts, it can not be solved by interpretation. In only the current tax period where irrecoverable things such as debtor's bankruptcy have occurred, interest income shall be deemed nonexistent if amount recovered is short of the principal. I don't agree with the logic and conclusion of the above decision.