법률행위 해석을 통한 엔화스왑예금에서 발생한 소득의 성격 규명

Abstract

Income Tax Act is based on the positive system, and thus taxes are not imposed on unspecified incomes. Hereat, the negative system has been applied to the Income Tax Act in order to solve the problem. To give a typical example, Item 13 was newly added in Clause 1, Article 16 of the Income Tax Act on December 31, 2001 at the amendment to the 6557th Act. At the time when the Income Tax Act was to be amended, banks began to introduce financial derivatives so as to attract the wealthy and also accelerated the development of highly profitable financial instruments. At the same time the wealthy, account holders, began to take interest in high-yield instruments. In those days, many PB centers dealt in the Japanese-yen swap deposit, i.e., an instrument to combine forward trading and a time deposit. The Japanese-yen swab deposit seemed to come under Item 13, Clause 1, Article 16 of the former Income Tax Act to be enforced from January 1, 2002. On August 2004, South Korea’s Tax Service asked the Ministry of Finance and Economy to define the foreign-exchange profit generated from the swap deposit, whereat the Ministry administratively interpreted it as an interest income on March 30, 2005. It is advisable to regard the foreign-exchange profit generated from the Japanese-yen swap deposit as an interest income. The swap deposit was developed inasmuch as the intention of a bank to raise funds was in accord with that of account holders to make interest incomes, namely, the consensus between the bank and account holders. Thus, it is appropriate to consider it to be an interest income from the viewpoint of natural interpretation. Moreover, it is possible to make a teleological interpretation of the purposefulness stipulated in Article 18 of the Framework Act on National Taxes, by extension, to have concrete access. In result, it is reasonable to interpret the foreign-exchange profit as an interest income. Currently, several cases of Japanese-yen swap deposits are pending in the court of first instance or second instance. Given the fact that such trials are performed after the positive system-based Income Tax Act applied the negative system to interest incomes, the courts’ rulings are likely to influence the amendment of the Income Tax Act whatever results.