계약조건과 다르게 시공되었다는 이유로 지급받은 금액은 기타소득에 해당됨[국패]
Seoul Administrative Court 2008Guhap42109 ( October 03, 2009)
Examination Income 2008-0087 (2008.05)
amount received on the ground that the contract is executed differently from the contract terms shall constitute other income.
The amount received for the reason that the contract was executed differently from the contract terms at the time of the sale contract constitutes other income as penalty or compensation received due to a breach or cancellation of the contract.
The contents of the decision shall be the same as attached.
1.The judgment of the first instance shall be modified as follows:
A. The Defendant’s disposition of imposing global income tax of KRW 137,264,870 against the Plaintiff on May 13, 2008 exceeds KRW 131,760,055, among the disposition of imposing global income tax of KRW 137,264,870 for the year 202 is revoked.
B. The plaintiff's appeal is dismissed.
2. Of the total litigation costs, 90% is borne by the Plaintiff, and 10% is borne by the Defendant, respectively.
Purport of claim and appeal
The judgment of the first instance shall be revoked. The defendant shall revoke the disposition imposing global income tax of KRW 137,264,870 on the plaintiff on May 13, 2008.
1. Quotation of the reasons for the judgment of the first instance;
Pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, the whole part of paragraph (1) of the grounds for the judgment of the court of first instance (the reasons for the disposition in this case) and paragraph (2) (the beginning of the second judgment of the court of first instance to the end of eight pages) of the "decision" (the period from the beginning of the second judgment of the court of first instance to the end of the disposition in this case) shall be cited for the reasons for the judgment in this case, and subsequent paragraphs (3) and (3) shall be made as follows. In addition, the judgment on
2. The damaged part;
(3) Therefore, it is reasonable to regard the instant agreement money as other income in the instant disposition. However, the fact that the Plaintiff disbursed KRW 9,307,500,000 in total as civil stamp, attorney’s fee, delivery fee, and provisional seizure for real estate in order to receive KRW 2,50,000,000 as other income in the instant disposition is without dispute between the parties. The amount of expenditure is recognized as necessary expenses to be reflected in the calculation of the tax amount
Therefore, since the part of the disposition of this case which did not reflect the above necessary expenses is unlawful, it is deemed to be KRW 131,760,055 as shown in the separate sheet if the income tax for the plaintiff is calculated for the year 202.
3. Additional statement of judgment on the grounds for appeal
As in the first instance trial, the Plaintiff asserts that the value of each of the instant stores is KRW 1,045,432,984, while the value of each of the instant stores is KRW 1,045,432,984, and the value of the case where the Plaintiff cannot use it as one store is clearly lower than KRW 2,50,000,000,000, which was paid by the Plaintiff at least to Nonparty 1,000,000,000.
However, compared to cases where each of the instant stores can be used as a single store, it cannot be readily concluded that the exchange value in the present condition is objectively low or that the amount of the sales contract was reduced from the beginning. Thus, it is difficult to conclude that the agreement amount was compensation for the decline in the present value due to the fact that each of the instant stores cannot be used as a single store. Rather, it is difficult to deem that the agreement amount was compensation for the decline in the present value due to the fact that the said agreement amount cannot be used as a single store. Rather, in the case of the instant types of stores where the Plaintiff intends to operate, it is difficult to say that the contract amount was paid for the failure of the special terms and conditions of the sales contract with the construction of each of the instant stores for the use of the instant stores, or in the case of the instant types of stores where the Plaintiff intends to operate, the expected profit that would be able to obtain more profits if operating the said three stores, or that it would be favorable for the sale of each of the above stores in the future, the Plaintiff’s assertion that the above agreement constitutes a realistic reason.
4. Conclusion
Therefore, the part exceeding KRW 131,760,055 of the Disposition in this case shall be revoked illegally, and the plaintiff's claim shall be accepted within the extent of the above recognition, and the remaining claim shall be dismissed as it is without merit. However, the judgment of the court of first instance shall be partially accepted the plaintiff's appeal and the decision of the court of first instance shall be modified.