지연손해금의 실질적인 성격이 불법행위에 기한 손해배상금에 해당하는지 여부[국승]
Seoul Administrative Court-2015 Guhap72627 (Law No. 30, 2016)
Whether the substantial nature of damages for delay constitutes damages based on tort
The substance of the damages for delay in this case cannot be readily determined by joint tort, and its legal nature cannot be viewed as damages to the payment itself which forms the content of the original contract due to damages due to nonperformance. Thus, it is "compensation received due to breach or termination of a contract on the right to property" under Article 21 (1) 10 of the Income Tax Act, which constitutes other income.
Article 21 of the Income Tax Act
2016Nu57016 global income and revocation of disposition
LAA
Defendant, Appellant
BB Director of the Tax Office
Seoul Administrative Court Decision 2015Guhap72627 decided June 30, 2016
February 24, 2017
March 24, 2017
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. On April 3, 2015, the imposition of global income tax on the plaintiff 2009 shall be revoked. The imposition of global income tax on the plaintiff 2009 shall be revoked.
1. Quotation of judgment of the first instance;
The reasoning of this Court’s judgment is as follows, except for the following determination of the Plaintiff’s assertion in this Court: (a) the reasoning of the first instance judgment is identical to that of the court; and (b) thus, (c) pursuant to Article 8(2) of the Administrative Litigation Act
2. The further determination of this Court
A. Summary of the plaintiff's assertion
1) The damages for delay of KRW 00 billion (hereinafter “the damages for delay of this case”) that the Plaintiff received from ○○ Housing Development Co., Ltd. (hereinafter “○○ Housing Development”) according to the final and conclusive judgment does not constitute “other income under Article 21(1)10 of the former Income Tax Act, i.e., damages caused by breach or termination of a contract, as a result of a tort, as a result of a tort.”
2) Even if it is not damages for tort, the Plaintiff did not have received damages exceeding the “damage for payment itself, which is the contents of the previous contract”.
B. Determination
1) Whether the damages for delay in this case constitute damages for tort
According to the background of the above-mentioned dispositions, ○○○, and Ma○○○○, which entered into a contract with the Plaintiff to transfer all the apartment site and the right to implement the project, and again returned only KRW 00 billion out of the total amount of the down payment and loan received from the Plaintiff even after transferring the development of ○○○ Housing. Ultimately, the ○○ Housing Development agreed to pay the remainder of KRW 00 billion to the Plaintiff, but as ○○○○○○○○ was not paid out of which, the Plaintiff did not pay the remainder of KRW 00 million, the judgment was finalized to pay the Plaintiff the investment money return lawsuit (Seoul Central District Court ○○○○○○○○○ ○○○○○ ○○○○ ○○○○
In light of the agreement between the Plaintiff and ○○ Housing Development and the final and conclusive judgment, etc., the evidence submitted by the Plaintiff and the representative director of ○○ Housing Development cannot be readily concluded that the substance of the instant damages for delay is damages arising from joint tort with ○○○○, etc. solely on the ground that the Plaintiff’s evidence and the representative director of ○○ Housing Development were ○○○○, etc.
2) Whether the instant damages for delay constitutes damages for payment itself which forms the content of the original contract
Article 41 (7) of the former Enforcement Decree of the Income Tax Act limits "the penalty or compensation" under Article 21 (1) 10 of the former Enforcement Decree of the Income Tax Act to "the compensation for damages caused by a breach or termination of a contract on property right". It is reasonable to view that in a case where monetary claim itself is not subject to income tax, such as compensation for damages or consolation money for infringement of non-property interest, such as human rights of life and body, etc., or family rights, it is not subject to income tax. On the other hand, the compensation for delay of monetary obligation cannot be deemed as damages to the payment itself, which is the contents of the original contract (see, e.g., Supreme Court Decisions 94Nu3070, May 24, 1994; 95Nu7406, Mar. 28, 1997; 96Nu16315, Sept. 5, 197); and the compensation for delay of monetary obligation under Article 208 (2) of the above Act.
As seen earlier, the Plaintiff’s claim for the development of ○○ Housing constitutes “money claim” based on the final and conclusive judgment in a lawsuit seeking return of investment deposit, and thus, the delay damages therefrom constitute “compensation received due to the breach or termination of a contract on property rights” rather than damages to the payment itself which forms the original contents of the contract. Therefore, the Plaintiff’s allegation on this part cannot be accepted.
3. Conclusion
Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit.