2. On the ○○○○, the disposition rejecting the reduction or correction of the global income tax for KRW 251,44,52 as of June 30, 2004, and KRW 231,227,946 as of June 12, 2004 by the head of the ○○○ Tax Office, and the disposition rejecting the reduction or correction of KRW 36,701,750 as of June 12, 2004 as of KRW 36,70 as of KRW 36,750 for the first term, KRW 36,70 for the second term, KRW 36,701,750 for the second term, KRW 36,701,750 for the second term, and KRW 42,797,970 for the first term, KRW 23,507,30 for the second term, and KRW 30 for the second term.

3. The costs of the lawsuit shall be borne by the Defendants in both the first and second instances.

A. In view of the amount received from the Republic of Korea as the cost for the use of ○○○○○-dong, ○○○○○○-dong, and 22 parcels of land (hereinafter “instant land”) in total, KRW 723,283,000 in 201, and KRW 734,035,000 in 202 (excluding the output tax amount of value-added tax; hereinafter the same shall apply) as the amount of real estate rent during each relevant taxable period, the amount of KRW 251,44,550 in 201, and KRW 231,227,940 in 202 was reported and paid to the head of the competent tax office, respectively.

B. In addition, the Deceased reported and paid KRW 367,017,50 for the first period of 2002, KRW 367,017,50 for the second period, KRW 367,017,50 for the second period, KRW 427,979,706 for the second period, KRW 435,073,294 for the second period, and KRW 36,701,750 for the first period of 2002, KRW 36,70 for the second period, KRW 701,750 for the second period, and KRW 42,797, KRW 970 for the second period, KRW 43,530 for the second period, and KRW 43,530 for the second period of 203.

C. On May 3, 2004, the deceased claimed a refund of global income tax and value-added tax reported and paid as above on the ground that the amount received as the price for the use of the above real estate (hereinafter referred to as "the dispute amount") was not the price for the use of or profit from the land of this case upon entering into a lease contract and the amount received as the price for the provision of real estate rental service was not the price for the use of or profit from the land of this case, and thus, it was not the price for the provision of real estate rental service, but the return and payment of global income tax and value-added tax. However, on June 30, 2004, the head of ○○ Tax Office rejected a claim for correction of the deceased's global income tax on the above global income of the deceased, and on June 12, 2004, the head of ○○ Tax Office rejected a claim for correction

[Ground of recognition] Facts without dispute, Gap evidence 4-1, 2, Gap evidence 5-1 through 4, Gap evidence 6 and 7-1, 2, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

The deceased filed a lawsuit against the Republic of Korea on the ground that the land of this case expropriated by the Republic of Korea from the deceased was no longer necessary for military purposes after the military base was removed, and the right of repurchase was created against the deceased. The Government of the Republic of Korea requested the deceased to compensate the deceased for the damages equivalent to the fees for the land of this case. On February 28, 1990, the court of final appeal prepared a protocol of settlement concerning the return of unjust enrichment or compensation for damages equivalent to the fees for the land of this case between the Republic of Korea and the Republic of Korea, and the Republic of Korea paid the deceased the amount agreed in the above protocol of settlement as unjust enrichment return or compensation for damages. Accordingly, although the key amount is not subject to income tax or value-added tax, the Defendants’ rejection of the request for correction by deeming the deceased as taxable object is unlawful.

(b) Fact of recognition;

(1) The instant land was originally owned by the deceased. The Republic of Korea, under Article 5(4) of the Presidential Decree on Special Measures for National Security, needs to be simple for military operations in the event of national emergency under the Act on Special Measures for Expropriation and Use of Land in Areas to be mobilized, and completed the registration of ownership transfer between April 14, 197 and April 19, 197.

(2) Korea used 26,984 square meters in total, including the instant land, to the Government of the United States pursuant to the Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (S.O.F.A.). Accordingly, US Armed Forces constructed 00 (O.O.) base on the instant land and installed ○○○ (O.O.) maintenance units and ○○ (O.O.) maintenance facilities on March 15, 1979.

(3) After that, the U.S. military authorities returned the portion of the land above to the Government of the Republic of Korea except for the land in this case. On the ground of the returned land, the Korea National Housing Corporation constructed an apartment building and leased it to the usfk and its families residing outside the barracks. The land in this case is used as the building site of the above apartment, infant gardens, library, etc., building site, playgrounds, children’s playgrounds, parking lots, roads, etc., and the convenience facilities or ancillary facilities of the residents in the above apartment.

(4) On December 22, 1988, the deceased asserted that the right of repurchase was granted to the deceased, who was the inmate, pursuant to Article 39 of the Decree on Special Measures (in a case where all or part of the securities paid as the expropriation price of the land expropriated under this Decree, or within five years from the completion of the redemption thereof, the inmate or his heir may purchase them first, if the redemption of the securities paid as the expropriation price of the land expropriated under this Decree, or within five years from the completion of the redemption thereof, the decedent or his heir may purchase them first) and filed a lawsuit for ownership transfer registration against the Republic of Korea against the Republic of Korea on December 82, 198, and "the Republic of Korea shall perform the procedure for ownership transfer registration on the land of this case against the deceased on May 8, 1979", and the appellate court dismissed the appeal against the plaintiff on May 30, 1989.

(5) Meanwhile, in the appellate trial on the instant case (Supreme Court ○○○○○○○○○○○○○) on February 28, 1990, a protocol of conciliation was drawn up between the deceased and the Republic of Korea as follows:

Reconciliation Clause

(1) The Republic of Korea shall implement the procedure for the registration of ownership transfer for sale on May 8, 1979 to the Deceased on the instant land.

(2) On September 28, 198, the Republic of Korea shall receive the redemption price of KRW 1,481,807,200 deposited by the deceased by the ○○○○○○○○○○○○ for 88 years, and the interest on the deposit money after the deposit date.

(3) With respect to the instant land, the deceased shall not claim a usage fee until the date of the registration of transfer of ownership in the name of the deceased under the above paragraph, and the Republic of Korea shall use it without compensation for three years from the date following the registration of transfer of ownership: Provided, That even until the expiration of the above three-year period, the US military and their families may use it without compensation for two consecutive years only once.

(4) If the U.S. military and its family members fail to use the instant land even before the period specified in the said paragraph expires, the Republic of Korea shall deliver it to the deceased, without any condition.

(5) Even after the expiration of the period, if the United States Armed Forces and their families use it, the Republic of Korea may continue to use it by paying to the deceased a fee for the appraisal of the market price.

(6) Litigation costs shall be borne by each person.

(6) As five years have passed since the preparation of the above protocol of settlement, the deceased requested the Ministry of National Defense to pay annual usage fees if it is impossible to return or return the land of this case to the Ministry of National Defense each year, and the Ministry of National Defense made a reply to the deceased that it is difficult to return the land of this case, while the Ministry of National Defense made a reply to the effect that it is difficult to return the land of this case, and paid

(7) Meanwhile, the use price of the instant land paid by the Ministry of National Defense to the Deceased is the amount equivalent to 3% of the total amount of the officially assessed individual land price of the instant land.

(8) On November 11, 2005, the Deceased died and jointly succeeded to the deceased’s property by the Plaintiff Song-○ and his wife, the Plaintiff Jeong-○ and Jung-○.

[Ground of recognition] Evidence Nos. 1 through 3, Evidence No. 2-1, 2, and Evidence No. 3-1 to 4, the purport of the whole pleadings

C. Determination

(1) The term "real estate rental income" refers to the income, etc. accruing from the lease of real estate or right to real estate; the term "loan" refers to the payment for the establishment of a right to lease on a deposit basis or other right and the use and profit-making of the goods or right by a lease contract or other method (Article 18 (1) and (3) of the Income Tax Act); the term "supply of services subject to value-added tax" refers to the provision of services or allowing the use of the goods, facilities or right by all contractual or legal reasons (excluding the supply of services without compensation) (Article 1 (1) and Article 7 of the Value-Added Tax Act).

따라서 제3자가 법률상 원인 없이 토지를 점유・사용함으로써 이득을 얻고, 이로 인하여 토지소유자에게 손해를 입히고 있어 그 소유자가 토지점유자를 상대로 부당이득금반환청구소송을 제기하여 승소 판결을 받아 집행한 금액은, 비록 법원에서 위 이득이나 손해에 관한 액수를 산정함에 있어서 그 토지의 임대료 상댱액을 기준으로 삼았다 하더라도 이는 부동산임대소득 또는 부동산임대용역의 공급대가라고는 볼 수 없다고 할 것이므로 소득세나 부가가치세의 과세대상이 될 수 없다고 할 것이다.

(2) In the protocol of conciliation drawn up in the Supreme Court on the claim for ownership transfer registration against the deceased against the Republic of Korea (Supreme Court Decision 00Meu○○○○○○○), the deceased did not clearly stipulate whether the cost to be paid to the deceased is restitution of unjust enrichment or its nature. However, as seen earlier, although the deceased found the ownership of the instant land by exercising the right of repurchase, it would be difficult for the deceased to actually transfer or deliver the instant land to the US Armed Forces and their families pursuant to the above agreement with the United States. Therefore, it would be practically impossible for the deceased to actually transfer or deliver the instant land. Accordingly, the deceased’s occupation of the instant land after the completion of ownership transfer registration is inevitable to be occupied without permission, and the Republic of Korea would have no choice but to make payment of unjust enrichment equivalent to the rent for the deceased, and the deceased would be able to use the instant land free of charge or rent for the deceased’s free use and return of the said land to the usfk at a certain rate exceeding the value-added tax base for the Republic of Korea’s free use and return of the instant land.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified, and the judgment of the court of first instance, which has different conclusions, is unfair, so the plaintiffs' appeal is accepted, and the judgment of the court of first instance is revoked, and it is so decided as per Disposition with the cancellation of the disposition of this case