Whether a public official is liable for damages by intention or negligence solely on the ground that administrative disposition was revoked.

It is insufficient to view that there is an intentional or negligent act of a public official who should bear the responsibility for compensating a loss equivalent to the remuneration of a certified tax accountant paid by a request for a national tax trial.

Article 34 (Scope of Real Estate Sales)

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiff 6,00,000 won with 5% interest per annum from October 31, 2006 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

1. Basic facts

(a) Details of land sale;

(1) On October 19, 2001, a sales contract was concluded between the Plaintiff and the Credit Depository of 0000 (hereinafter referred to as the “Credit Depository of 000, Mar. 22, 2002”) (hereinafter referred to as the “00 bank”) with respect to the purchase price of 00,000 - 00 - 00 -,000 -,000 -,000 -,000 - 00 -,000 -,000 - KRW 135,669 m2,000 - as representative director (hereinafter referred to as the “non-party company”).

(2) On April 20, 200, the next 000 bank divided the above forest into 57,892 square meters (hereinafter “the first land”) and 216-1 forest land and 77,777 square meters (hereinafter “the second land”). On April 30, 200, with respect to the land No. 1 of the same month, a sales contract with the purchase price as KRW 100 million was prepared, and the non-party company prepared the purchase price as KRW 820,00,000 with respect to the land No. 2 of the same month and completed the registration of ownership transfer in the future of the plaintiff.

(3) The plaintiff registered the transfer of ownership on May 25, 200 to Hong 00 on May 23, 2002 with respect to the share of 33058/77 of the 7777 out of the land in the second land by reason of sale on May 23, 2002, with respect to the share of 1653/167 of each 777 on June 3, 2002, and with respect to the share of 3306/77 of each 777 on May 14, 2002, respectively, on June 300, 200, with respect to the share of 3306/77 on June 3, 200 and this 0 on May 14, 2002, on June 10, 2002, each of them registered the transfer of ownership on June 10, 2002.

(b) Reporting capital gains tax and refund of global income tax;

(1) On May 25, 2002, the Plaintiff voluntarily paid KRW 91,485,047 and resident tax KRW 9,148,504 and KRW 9,148,504 to Hong 00, when filing a preliminary return on the tax base of capital gains tax on the transfer of part of the land on May 25, 200.

(2) On May 31, 2003, the Plaintiff filed a final return on the tax base, such as the global income tax, etc. for the year 2002 with respect to the disposal of his wage income and the land set forth in the above A and the second land, and received a refund of KRW 21,231,080.

C. Each disposition of this case and revocation thereof

(1) On September 17, 2005, a public official of the 00-year-old secretary conducted a tax investigation with respect to the Plaintiff on the basis of a tax evasion report. Accordingly, on January 2, 2006, the head of the tax office notified the Plaintiff of KRW 61,621,620 and KRW 219,469,890 (hereinafter referred to as the “first imposition disposition”) on the grounds that the Plaintiff received KRW 21,231,080 through the final return on the tax base of global income tax, etc. for which the year 2002 belongs, while having knowledge that the Plaintiff received KRW 21,231,080 through the final return on the tax base of global income tax, etc. for which the Plaintiff received KRW 31,676,770 (hereinafter referred to as the “final imposition disposition”).

(2) On April 3, 2006, the Plaintiff filed a national tax appeal against each of the instant dispositions via a proxy certified tax accountant Lee 00. On October 23, 2006, the National Tax Tribunal rendered a decision to revoke each of the instant dispositions that notified transfer income tax on the ground that the Plaintiff’s income from the disposition of land No. 2 was not capital gains but business income, and the said decision became final and conclusive around that time.

(3) On October 30, 2006, 00 won was claimed against the Plaintiff as remuneration for the pertinent national tax appeal case.

[Ground of recognition] Facts without dispute, Gap 1 through 5, 7, 8, Eul 1, 2, 4, and 5 (including each number), and the purport of the whole pleadings.

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

The plaintiff had already registered the business of land trade business before the disposition of land No. 2, and had already been refunded part of the amount paid voluntarily as capital gains tax through the final return on tax base, such as global income tax. However, the public officials belonging to the 00-year-old administrative agency compared to the above facts in the course of the tax investigation against the plaintiff, which caused the illegal disposition of this case. Thus, in order to revoke each of the above dispositions, the plaintiff is liable to compensate for the above losses of the plaintiff.

B. Determination

(1) On the other hand, in a case where a public official in charge of a certain administrative disposition is deemed to have lost objective legitimacy due to failure to perform an objective duty of care when considering the general public official’s standard, such administrative disposition constitutes a tort by intention or negligence of a public official. In such a case, whether an objective legitimacy has been lost should be determined by whether there exists a substantial reason to assume liability for compensating for damages to the State or local governments, taking into account all the circumstances, including the type and nature of gains of infringement, the form and cause of an administrative disposition causing infringement, the victim’s involvement in the exercise of the administrative disposition, and the degree of damage (see, e.g., Supreme Court Decision 2001Da33789, 3789, 3796, 3802, 33819, Nov. 27, 2003).

(2) In full view of the purport of the arguments in Gap evidence No. 3, Gap evidence No. 4-10, and Eul evidence No. 7, the plaintiff completed the registration of business with the trade name "202, April 29, 200," "00, prior to the day when the registration of ownership transfer was completed in the plaintiff's name." The plaintiff reported the results of tax investigation on the plaintiff around November 2005, and prepared the treatment investigation report. The plaintiff did not state the non-party company's business registration number and type of business, but did not state the non-party company's business registration number and type of business, but did not decide whether the plaintiff's income from the second disposition constitutes capital gains or business income. Since the plaintiff's maximum 00 was paid part of the amount paid through the plaintiff's first disposition of business registration and the final return of tax base through the plaintiff's tax base return on global income and the tax base return on global income, it seems that the plaintiff received part of the amount paid through the tax base return on global income and tax base.

(3) However, whether the income from the transfer of real estate is business income or capital gains under the Income Tax Act shall be determined according to the ordinary social norms, considering the transferor’s acquisition and holding of real estate, whether the transfer was made, whether the transfer was made, the size and frequency of the transfer, and whether the transfer was made for the purpose of profit-making and the continuity and repetition of business activities. In making such determination, not only the transfer of real estate, but also the transfer of real estate owned by the transferor, but also all the circumstances surrounding the transfer of real estate before and after the time when the transfer took place throughout the entire real estate owned by the transferor. (See Supreme Court Decision 94Nu16021 delivered on September 15, 1995) The above evidence and facts are as follows. In other words, if the non-party company mainly engaged in the manufacturing and selling of electric machinery purchased the first and second land, but only the second land was transferred to the plaintiff, but only the second land was made by the transfer of the share of the second land prior to such disposal, it appears that the plaintiff company did not have acquired the transfer value of the real land as part of the land.

(4) Furthermore, in the course of the tax investigation, the Plaintiff was a person who had the largest 00 persons, etc. registered as a business operator as a land trading business and did not notify the Plaintiff of the fact that the Plaintiff was refunded after filing a report of global income tax. ② The head of the tax office imposed the second tax disposition by adding the capital gains tax in March 17, 2006, with the knowledge that the Plaintiff received the refund of KRW 21,231,080 through the final return of global income tax, etc. for the tax year 2002, and thereafter the Plaintiff filed a request for a national tax trial on each of the dispositions of this case. Accordingly, the head of the tax office may revoke the first tax disposition ex officio prior to the second tax disposition, but even if the Plaintiff had registered the business as a land trading business and had already received a refund after filing a report of global income tax, the head of the tax office imposed the second tax disposition by deeming that the Plaintiff was not a business income from the second land disposition.

(5) Therefore, considering each of the circumstances described in paragraphs (3) and (4) above, it is insufficient to view that the circumstances described in paragraph (2) above are insufficient to deem that there is a substantial reason to assume the State responsible for compensating for damages equivalent to the tax accountant’s remuneration that the Plaintiff incurred due to a request for a national tax trial. Thus, a series of acts by the public officials belonging to the Defendant, who caused the instant disposition,

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.