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(영문) 서울행정법원 2015. 05. 08. 선고 2014구합17470 판결

사례금 해당 여부[국승]

Title

Whether the case constitutes a honorarium;

Summary

The amount received by the Plaintiff in relation to the instant case constitutes a honorarium among other income.

Related statutes

old Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009)

Cases

Seoul Administrative Court 2014Guhap17470

Plaintiff

○ ○

Defendant

○ Head of tax office

Conclusion of Pleadings

April 17, 2015

Imposition of Judgment

May 8, 2015

Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The imposition of each global income tax by the Defendant against the Plaintiff in the separate sheet shall be revoked.

Reasons

1. Details of the disposition;

(a) The joint agreement and the agreement between the LOBA and the LOBA and the LOBA and the legal dispute between the LOBA and the LOBA.

1) Around 1976, the Plaintiff established △△△ Industrial Company, △△, Inc. (hereinafter referred to as “△△△”) by converting the “private entrepreneur for the production of the kitchen supplies that he operated into a corporation.” In March 1, 1992, the Plaintiff established △△△△, Inc. (hereinafter referred to as “△△△”).

(2) On January 24, 1998, ○○○○○○○ established ○○○○○○○, a corporation which is engaged in the manufacture and sale of automobile exhaust gas reduction devices (hereinafter referred to as “○○○○○○○”). 3) An agreement was made on July 28, 1998 by the rasher and the sn beamline in the name of “○○○○○○○○○○○○○○○○○○,” which is a corporation which is engaged in the manufacture and sale of automobile exhaust gas reduction devices, and the ○○○○○○○○○○○○○○○○, a patent application number of 00, 00, 00, 00, 000, 00, 00, 000, 00, 00, 000, 00, 00,000,000,000,000,00,000).

5) In addition, on January 8, 2001, ○○○○ (hereinafter referred to as “○○○”) who was in office as a regular business of △△△△, a Japanese company, jointly carries out a business agreement to jointly develop the exhaust gas removal device and to obtain permission necessary for commercialization from △△△△. Around March 2003, 200, the said agreement was concluded with a repeated experiment failure.

However, around May 2003, Dog Dog Dog-gu in the Bank of Korea established a branch office in Japan ○○○○, and opened ○○ as the branch office, thereby promoting the development of exhaust gas removal devices independently.

6) However, on July 21, 2005, △△△△△ Co., Ltd. (hereinafter referred to as “△△△△△”) was the largest shareholder (35.27% shares) and 100% subsidiary, and △△△△△△ Co., Ltd. (hereinafter referred to as “△△△△△△△”) was jointly established on February 10, 2006. The △△△△△△ Co., Ltd. (hereinafter referred to as “△△△△△△△”) was appointed as the primary representative director and started the same business with the business promoted by △△△△△△△ branch of △△△△△ Co., Ltd. (hereinafter referred to as “△△△△△”). The ○○ submitted a resignation letter to △△△△△ branch on May 9, 2006, and around that time, the △△△ branch of △△△△ branch was the results of the research on the development.

7) In addition, △△○ Co., Ltd. completed the registration of joint patent rights (each share 1/2) with the patent number of the Republic of Korea No. 459712 with respect to the term “brine mix decomposition system and the brine compound processing system using it,” and the above patent right should be attributed to △△○ Co., Ltd. in accordance with the instant joint venture agreement, and the said patent right should be attributed to △△ Metropolitan Co., Ltd., Ltd., which was successful in the development of technology related to the above patent right, and it was determined that △△△△○ Co.

8) At that time, ○○○○○○○○○ side, both of which have filed a lawsuit, filed an application for preservative measures, filed a criminal complaint, etc. (hereinafter collectively referred to as “related claim for damages, etc.”) against △△○○○○○○○○○○ side” in the following [Attachment 1]. The Seoul Central District Court (hereinafter referred to as the “Seoul Central District Court”), the Ansan Central District Court (hereinafter referred to as the “Seoul Central District Court”), the Suwon Central District Court (hereinafter referred to as the “Masan”), and the Maa District Court (hereinafter referred to as the “Maa District Court”) respectively.

(b) Agreement on termination of disputes;

1) On February 25, 2008, △△△, which was so doing, drafted the following agreements (hereinafter referred to as the “instant agreements”) with respect to the mutual savings banks.

Agreements

The following are agreed with respect to the transfer, acquisition, etc. of patents and business rights related to Raber, electronic sn beam method, 's shot beam method', 's shot beamer' and 's method of purifying hazardous gas using the shot beamline':

1.A shall transfer to B all of the following patent-related businesses and business rights:

(1) An overseas patent registered under the name of A in relation to a patent application of the Republic of Korea (a hazardous gas purification method and equipment using a stoner and sn beam beam)

(2) Patent of the Republic of Korea No. 00000 ( Exhaust gas purification equipment and method by internal combustion engines)

(3) Eul shall permit Gap to conduct a business of reducing exhaust gas for incineration (production/sale right).

2. The price for taking over a patent or a business license shall be zero billion won (excluding value-added tax);

3. The dispute between the parties concerned shall be automatically terminated by this recommendation and shall not raise any objection.

4.The terms and conditions of payment of the acquisition amount shall be paid in installments as follows:

(1) A person shall pay an amount of KRW 0 billion a day (excluding value-added tax) on February 26, 2008, and shall promote his/her business through his/her legal representative and publicly announce matters agreed on the business rights which he/she acquired through legitimate procedures.

(2) A person shall pay an amount of KRW 0 billion per day (excluding value-added tax) on March 25, 2008, and shall deliver documents related to acquisition by transfer and all documentary evidence for resolution in accordance with the dispute to Eul.

February 26, 2008

Doeng Company A/L

Section B. △ corporation

2) On March 17, 2008, ○○○, an agreement for the settlement of a legal dispute (hereinafter referred to as the “agreement for the settlement of a legal dispute of this case”) entered into with the following agreement on March 17, 2008, including the agreement in this case, and hereinafter referred to as the “each agreement in this case”).

Agreement on the Termination of Legal Disputes

Detailed matters under the Agreement dated February 26, 2008

△△(hereinafter referred to as “A”) and △○(hereinafter referred to as “○○”) agree to terminate the legal disputes currently pending between the Parties as follows:

1. Termination of ongoing legal disputes;

(1) A shall receive all the documents, including a written consent to revoke the security of an application case, as well as a copy of the documents, as required for the implementation of each of the following items, at the same time upon receipt of the documents, and at the same time deliver to B a copy of the documents, as required for the implementation of the following items, and deliver within three days thereafter, A shall deliver to B a copy of the documents, a copy of the receipt certificate, etc. of the receipt certificate, within three days thereafter, pursuant to a contract entered into by the same person (patent/patent No. 0000 related to patent application No. 98-000 of the Republic of Korea (patent/patent No. 0000) and the transfer of business rights (patent/patent No. 000 of the patent application No. 98-000).

(1) Withdrawal of a lawsuit filed by the Seoul Central District Court 2007Gahap0000 filed by Company A against Company B, including the modification of the title of patent right.

② Withdrawal of the lawsuit claiming damages No. 2008Gadan0000 filed by the Suwon District Court against the △△△△△△ Company A

3. Claim for Delivery or Provisional Attachment Claim No. 2006Kadan00000 for Delivery or Provisional Attachment Claim No. 2006, A filed by the Suwon District Court against B, and revocation of its execution

4. Withdrawal and cancellation of the application filed by Gap for provisional disposition against Eul, Seoul Central District Court 2007Kahap0000

5. Withdrawal and cancellation of the application filed by Party A against Company △△△△△, which was filed by the Seoul Central District Court No. 2008Kadan000, for provisional seizure

6. Withdrawal of lawsuits filed by Gap against ○○○ and △△△△△△ Co., Ltd. in Japan on the claim for damages of 19 years (limited to the case) and 000

7. Withdrawal of an application for provisional attachment application No. 000 of the 18-year 18-year 1000 filed by Party A against Party ○○ in Japan and cancellation of its execution

8. Withdrawal of a criminal complaint filed by A against ○○ in Japan

(2) B shall require ○○ to immediately return the deposit money for lease on the △△ exhibition center of Party A before withdrawal of the case, and require Party B to immediately return the deposit money for lease on the △△ exhibition center of Party A to Party A, and △△△ factory of Party A.

2. Termination of future legal disputes;

After the preparation of this Agreement, Gap and Eul do not raise any civil, criminal and patent issues against each other and related parties (including △△△△△ and △△ Electronic Co., Ltd.) with respect to "Rayer, sn beam beam, sn beam beam, and hazardous gas purification methods and devices using snicker and sn beam beam, and do not raise issues against the press.

3. Suspension of proceedings of the case)

At the same time as this Agreement is prepared, A and B shall cease to proceed with each case set forth in paragraph (2).

4. (Confidentiality)

A and B shall not disclose the contents of this Agreement to a third party without the consent of the other party.

March 17, 2008

Doeng Company A/L

B. △ corporation (1)

(2) ○○○

C. Payment of the key money of this case

1) On February 26, 2008, ○○○○○ in charge of the instant agreement received 1.1 billion won, and on March 17, 2008, the amount stipulated in Article 4(2) of the instant agreement, which was KRW 0 billion, respectively (hereinafter referred to as “the amount of each of the above amounts”) from each of the instant agreements (hereinafter referred to as “the instant agreement”).

2) However, the Plaintiff, as indicated below, was paid from ○○○○○ to the sum of KRW 000,000,000,000 (hereinafter collectively referred to as “the issues of this case”) and the shares (hereinafter referred to as “one-four,000,000,000,000).

D. Disposition of this case

1) On January 6, 2012, the director of the Seocho District Tax Office filed a complaint with the Seoul Central District Public Prosecutor's Office on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) regarding the omission of sales, and (2) imposed the imposition of KRW 00,00,000 for the payment of KRW 00,00,00 for the corporate tax in 2008, and each disposition of KRW 00,000 for the payment of KRW 00,000 for the payment of KRW 200,000 for the payment of KRW 200,000 for the payment of corporate tax in 208, 2009, and each disposition of KRW 00,000 for the payment of KRW 20,000 for the tax evasion (hereinafter referred to as "the first disposition").

2) However, the Seoul Central District Prosecutors' Office, in the investigation process commenced following the above accusation, deemed the above amount to be a reward claimed by the Plaintiff or a loan claimed by ○○○○○ on April 16, 2012, but decided not to prosecute the above decision without suspicion on the ground that it cannot be seen as the sale by ○○○○. The Defendant appealed against the above decision as Seoul High Prosecutor's Office 2012 High Prosecutor's Office No. 2000, but the appeal was dismissed on June 8, 2012, and the Tax Tribunal also rendered a ruling revoking the initial disposition on October 19, 2012 from the case of a tax appeal (2012,000, 200, 2012, which was filed by ○○ Bank of Korea) which was dissatisfied with the initial disposition.

3) The director of the Seocho District Tax Office, in accordance with each of the instant agreements, deemed that the instant key money was paid by the Plaintiff in his personal qualification in relation to the handling of claims, such as withdrawal of claims for damages, etc. as the representative director of the Dole Maei Maeng Bank in accordance with Article 21(1)17 of the Income Tax Act, and notified the Defendant, who is the head of the tax

4) On the corresponding date indicated in the separate sheet disposition date, the Defendant issued a correction and notice of global income tax amount on the taxable year’s taxable year’s column to the Plaintiff as the corresponding amount indicated in the tax amount column (hereinafter “instant disposition”). The Plaintiff dissatisfied with the instant disposition and filed a request for examination on the corresponding date indicated in the request date column to the Commissioner of the National Tax Service, but was dismissed on the corresponding date indicated in the decision date.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 16, 20 to 23, 25, Eul evidence 1 to 5

(including those with more than one number; hereinafter the same shall apply) each description, the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Defendant issued the instant disposition by deeming the instant issue money as an honorarium, it did not constitute other income provided in each subparagraph of Article 21(1) of the Income Tax Act, but cannot be deemed as income subject to taxation under the current Income Tax Act, which has been listed in the source of income, since the said amount was received by the Plaintiff as the above materials for mental suffering caused by the Plaintiff’s act of worship ○○○○○.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Article 21(1) of the Income Tax Act provides that "other income shall include interest income, dividend income, real estate rental income, labor income, annuity income, retirement income, and income, other than capital gains, as follows." The term "compensation" refers to money and valuables paid as a case in connection with the processing of affairs or the provision of services, etc., and whether it falls under it should be determined by comprehensively taking into account the motive and purpose of receiving the relevant money and valuables, relationship with the other party, amount, etc. (see, e.g., Supreme Court Decisions 9Nu20304, Jan. 15, 199; 2010Du27288, Sept. 13, 2013). In addition, the issue of which type of income under the Income Tax Act does not have room for ratification by indirect facts (see, e.g., Supreme Court Decision 97Nu2429, Oct. 24, 197). 197; however, the other party cannot be presumed to be subject to taxation in light of empirical rule 19.

3) In light of the above legal principles, it is reasonable to view that the issue amount of this case was paid to the plaintiff as the representative director of ○○○○ in accordance with the agreement of this case in relation to the management of affairs, such as withdrawal of the claim for damages, etc., by taking into account the following circumstances: (a) Gap's health class, Gap's 8 through 11, 17, 18, 28, Eul's 4 and 5, and Eul's 7's 4 and 9; and (b) the plaintiff's 23 and 26's 7's 7's 198 ○○ in two times; and (c) the plaintiff's ○○ in relation to the above 00 million 's ○○ in consideration of the following facts: (a) it is difficult to view that the plaintiff's ○ in relation to the above 200 billion 's ○ in consideration of the purport that the plaintiff's ○ in relation to the above 2000 billion 's ○.

① Generally, in a case where a property right is infringed due to a non-performance of obligation or a tort of another person, it shall be deemed that the compensation for damages would also be recovered by the compensation for such property damage. Therefore, it is not allowed to claim consolation money on this ground. However, in addition to property damages, only if the compensation for property damage remains unrecurable mental damage due to damage to honor or credit, etc., other than property damage, it shall be deemed that the consolation money for emotional distress may be claimed (see Supreme Court Decision 96Da36159, Feb. 14, 1997). Even if ○○○ committed a certain illegal act, there is no evidence to prove that the damage was inflicted on the Plaintiff’s individual, not by ○○ which is a party to the joint project agreement in this case, and even if property damage was inflicted on the Plaintiff’s individual, there is no evidence to prove that

② At the time of the payment of the instant key money, there was a rapid legal dispute between ○○○○ and the LO○○, and ○○○○, entered the method of resolving the dispute in detail through the instant agreement and the instant legal dispute settlement agreement. If the Plaintiff received the instant key money from ○○○○ in the capacity of an individual in such a situation, it is naturally anticipated that the instant money is a solatium in writing to prevent another dispute over the nature of the said key money. However, such document was not prepared (on March 22, 2011, ○○ was in fact a loan of this case, ○○) even though it is anticipated that it would be a solatium in order to later specify the key money in writing to prevent another dispute over the said key money. On April 6, 2011, ○○ requested a provisional seizure to the Plaintiff by content-proof document stating that the instant amount was a loan, and that the declaration of intention to recover the amount was presented to the Plaintiff, and on April 6, 2011, ○○○○○○○.

③ At the time of being investigated due to suspicion that ○○○○○○ paid the instant key money to the funds of △△△△△△△△△△△ in the Suwon District Prosecutors’ Office, the Plaintiff stated that the said key money was the borrowed money to the public prosecutor as a witness around July 201, when being investigated.

However, if the above issue amount is paid as consolation money, there is no reason for the Plaintiff to make such statement. This is more so taking into account that the time when the Plaintiff’s above statement was made by content-certified mail, claiming that the above issue amount was borrowed money to the Plaintiff, and that it was after the delivery of the document claiming the return.

④ Until each of the instant agreements and key issues are paid, ○○○ side, etc., the Plaintiff filed a lawsuit against ○○ side, but did not file a lawsuit against ○○○○ in his individual capacity to pay consolation money.

⑤ The amount of consolation money is excessively excessive in light of social norms (the amount of consolation money presented by ○○○ to pay to the Plaintiff as an individual qualification on May 2006 is only KRW 00 million).

【○○○○ was charged with the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) (hereinafter “Aggravated Punishment, etc. of Specific Economic Crimes”) by suspicion that he embezzled the instant issues with the funds of △△△△△△△△△△ by means of payment of the instant funds. In the instant criminal case, ○○○ alleged that the instant funds were “the instant funds paid in connection with the patent dispute between △△○ and △△△ in the instant case,” and the said court also recognized the said funds as a settlement amount if the said funds were the nature of the said funds in the judgment. In addition, the said judgment of the first instance court was reversed ex officio after the said case was deliberated in combination with other cases, but the appellate court did not reverse the judgment of the first instance court as to the nature of the instant funds, and the said judgment became final and conclusive in accordance with Supreme Court Decision 2014Do9691, Jan. 15, 2015.

7) At the time of the instant agreement, the Plaintiff was in office as the representative director of the L/C-U. L/C-U., and the Plaintiff and his family owned approximately 00.00% of the shares issued by the L/C-U. L/C-U., and thus, the Plaintiff seems to have been able to actually decide on

8) The damages claim amounting to be claimed by ○○○ side through the expansion of the claim in a lawsuit, such as related damages. However, according to the agreement in this case and the agreement on the conclusion of the legal dispute in this case, the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in order to permit the business of reducing exhaust gas by incineration, the patent application in the Republic of Korea, 98-0000, overseas patent rights related to the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the agreement in the

① Supreme Court Decision 2013Du3818 Decided January 15, 2015, which the Defendant invoked, refers to the case where the Plaintiff’s money was disputed by agreement between the Plaintiff, an individual, and the Nonparty in the process of debt settlement. In this case, the instant Supreme Court Decision is inappropriate to be invoked in this case, since there was a legal dispute between the Plaintiff and the ○○○○○ side, not the Plaintiff, but the Plaintiff’s individual.

4) Therefore, the Plaintiff’s assertion that the instant disposition constitutes a taxation disposition on income not subject to income tax is without merit.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.