2008년도 「소득세법」 판례 회고

There are only six individual income tax cases rendered in 2008, but all of them are important. The Supreme Court case 2006 Du 3964 (2008.12.11) laid the foundation to solve the ever-increasing number of tax issues related to people with dual residency by clarifying the issue of burden to prove dual residency and by suggesting methods to determine the country of residence. The Supreme Court case 2006 Du 9535 (2008.1.31) considered the relationship between real estate rental income and business profit and clarified that the money received in return for closing real estate rental business is not capital gain but business profit. The Supreme Court case 2006 Da 31672 (2008.6.26) explained Section 41(3) of the Individual Income Tax Act’s legislative intent in defining ‘payment for damages’ under Section 21(1)(x) as ‘payment for damages incurred due to breach or termination of contract regarding property right.’ This case will be a good standard to judge whether payment for damages can be recognized as ‘other income.’ The Supreme Court case 2007 Du 146 (2008.5.29) confirmed that the acquisition date of new house by association members is issuance date of certificate of use inspection or approval date for use. Supreme Court case 2007 Du 4490 (2008.5.8) showed the great meaning of strict interpretation principle in determining taxability of capital gains. The Supreme Court case 2006 Du 1609 (2008.5.29) clarified the relationship between provisional and final reporting which was rarely discussed. The author hopes that a lot more meaningful cases will be decided in 2009 so that important individual income tax issues can be resolved.