Whether compensation for damage caused by illegal acts by public institutions is compensation for damage caused by breach of contract.

In the event of a repurchase right, the act of a local government that violates the obligation to notify and announce to the Plaintiff may not be deemed as a penalty or compensation received due to breach or termination of a prescribed contract, taking into account the fact that the Plaintiff appears to be a tort due to the infringement of the right to enter into a new purchase and sale contract (no relation with the acquisition by consultation, which is the first contract).

Article 21 of the Income Tax Act

1. The Defendant’s imposition disposition of KRW 67,086,590 on September 4, 2007 by the head of ○○ Tax Office against the Plaintiff on September 4, 2007 is revoked.

2. The disposition of imposition of income tax of KRW 6,708,660 against the Plaintiff on September 4, 2007 by Defendant ○○ mayor shall be revoked.

3. The costs of lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Details of the disposition;

A. ○○○ City, around 197, established a plan to create “○○○○○ Park” in ○○○○○ Dong, a ○○○-dong, in order to utilize the land in a development restriction zone, maximize the use of the land, and enhance productivity. On January 23, 1998, 198, ○○○○○○-dong, 1067, 380 square meters prior to 10758, 10758, and 178 square meters prior to 10758-1,000 won prior to 10758-1,090 won (hereinafter referred to as “instant three lots of land”) and did not make a public announcement of the ownership transfer registration under the former Act on Special Cases Concerning the Acquisition of Land and Compensation for Damages for Public Use (hereinafter referred to as “former Special Cases Concerning the Acquisition of Land before repeal by Act No. 6656, Feb. 4, 2002”), but did not have completed the registration of ownership transfer registration under the name of the instant land.

C. Therefore, the Plaintiff, who lost an opportunity to exercise the right of repurchase, filed a lawsuit against ○○ City claiming that ○○ City did not notify or give public notice of the occurrence of the right of repurchase was a tort.

D. On May 18, 2006, the first instance court rendered a judgment of 2005Da2393 on May 18, 2006 to 200, that if there were land to be redeemed under the former Special Act, public project operators shall without delay notify the original owner of such fact, and if it would be impossible for the original owner, etc. to exercise the right of repurchase to exercise the right of repurchase recognized under the Act, thereby causing damages to lose the right of repurchase itself, it would constitute tort against the original owner, etc., the court rendered a judgment of 154,364,387 won, and the amount of 5% per annum from 60 to 206.4% per annum from 207 to 206.4% per annum from 206 to 304.6% per annum from the day following the date of complete payment (the court rendered a judgment of 200Da3647, May 26, 2006).

G. On September 4, 2007, Defendant ○○ Tax Office issued a notice of taxation of KRW 67,086,590 as global income tax for the year 2006 (hereinafter “instant disposition of non-income tax”) on the ground that the instant damages on the Plaintiff constitute “the penalty or damages received due to a breach or termination of a contract” under Article 21(1)10 of the Income Tax Act, and thus, it constitutes “the disposition of imposing the resident tax of KRW 6,708,660 as income tax for the year 2006.” In addition, Defendant ○○ Tax Office issued a notice of taxation of KRW 6,708,60 as income tax for the Plaintiff pursuant to Article 176(2) of the Local Tax Act on September 4, 2007 (hereinafter “instant disposition of imposing the resident tax”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 14 (including each number), Eul evidence No. 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the party's assertion

(i)the plaintiff

"The damages of this case are not "the penalty or damages caused by a breach or termination of a contract" under Article 21 (10) 10 of the Income Tax Act, but "the damages of this case is based on the damage claim arising from a tort separate from the underlying claim, and even if the damages of this case are caused by a breach of a contract, it is merely a mere recovery of capital, and thus it is not money exceeding the damages per se to the payment itself which is the contents of the original contract, so each disposition of this case against which global income tax and resident tax are imposed on the plaintiff is unlawful.

"The defendant's acquisition of the land of this case by consultation has the nature of a contract under private law. The contents of such contract include the obligation of notification and public notice when a repurchase right under the former Act on Special Cases occurs to ○○ City, which is a project executor. Thus, the compensation for damages of this case acquired by the plaintiff due to the violation of the obligation under the terms and conditions of the contract (non-performance of obligation) constitutes "compensation due to breach of contract" and thus, each disposition of this case imposing global income tax and resident tax on the plaintiff is legitimate."

Attached Form is as shown in the attached Form.

C. Determination

(1) Determination on the claim against the head of ○○ Tax Office

(A) Presumption

According to Article 21 (1) 10 of the Income Tax Act, one of the other income is "a penalty or compensation received due to a breach or cancellation of a contract". Under Article 41 (7) of the Enforcement Decree of the Income Tax Act, "the penalty or compensation" is "the compensation received due to a breach or termination of a contract on the property right, and refers to the value of money or other goods to compensate for the damage exceeding the damages to the payment itself which forms the original contents of the contract regardless of the title thereof." The interpretation of tax laws and regulations shall be strictly interpreted, and expanded interpretation or flexible interpretation shall be prohibited, so "a contract on the property right" or "a contract on the property right" shall be limited to a contract with a strict meaning (see Supreme Court Decision 91Nu8180, Jun. 22, 1993).

(B) The former Special Act on the Settlement of Land, etc. provides for the standards and methods for the project operator to acquire land, etc. through consultation and the compensation therefor from the owner of the land, etc., and there is no doubt that the agreement for acquisition by consultation or compensation has the substance of a private transaction or private contract made by a public institution as a private economic entity (see, e.g., Supreme Court Decisions 98Da2242, 2259, May 22, 1998; 99Da26924, Sept. 8, 2000). Ultimately, the legitimacy of the Plaintiff’s claim depends on the judgment as to whether the damages in this case were paid as the effects of a private sale contract, which is an agreement for acquisition by consultation, as a result of the termination of the contract (referring to a default arising from the debtor’s failure to comply with the contract). It will be examined below.

① ㉠ 구 특례법 등의 공법상 환매는, 환매기간 내에 환매의 요건이 발생하면 환매권자가 수령한 보상금의 상당금액을 사업시행자에게 지급하고 일방적으로 의사표시를 함으로써 사업시행자의 의사에 관계없이 성립하는 것으로, 환매권자가 종전에 협의양도하거나 수용된 소유권을 회복하는 축면이 있다 하더라도, 이는 어디까지나 환매권자와 사업시행자 사이의 새로운 매매1)이지 이를 종전의 협의양도나 수용의 취소 또는 해제로 볼 수는 없으므로, 이러한 환매권은 협의취득이라는 본래의 계약과는 별개의 권리로 이해되고 (물론 원고는 환매권을 행사할 기회, 즉 새로운 매매계약을 체결한 기회를 잃었기에 새로운 매매계약에서도 위약의 문제가 생길 여지가 없다), ㉡ 협의취득시 반드시 환매권의 발생이 예상되지 아니하며(일정한 요건하에 환매권이 발생하고, 환매권이 발생하였다 하더라도 그 행사가 강요되지 아니한다), ㉢ 환매권은 공공의 목적을 위하여 수용 또는 협의취득된 토지의 원소유자 또는 그 포괄승계인에게 재산권보장과 관련하여 공평의 원칙상 인정하고 있는 권리로서 민법상의 환매권과 달리 법률의 규정에 의하여서만 인정된 권리이고, ㉣ 구특례법이 환매할 토지가 생겼을 때에 기업자가 이를 원소유자 등에게 통지･공고하도록 규정한 취지는 환매권자에게 원소유자에게 그 사실을 알려 주어 환매할 것이지 여부를 최고2)하도록 함으로써 법률상 당연히 인정되는 환매권 행사의 실효성을 보장하기 위한 것으로 그 의무는 법적인 의무로 보인다는 면에서, 협의취득이라는 매매계약에 있어서 소유자의 소유권이전등기절차이행의무와 기업자의 보상금지급의무만이 서로 대가적 관계를 가진 의무로 그 계약내용에 포함될 뿐 ○○가 환매권이 발생할 경우 이를 원고에게 통지･공고해야 할 법적인 의무까지 위 계약내용에 포함되어 있다고 볼 수 없는 점 (즉, ○○시는 협의취득이라는 매매계약상의 의무를 모두 이행하였으므로 채무불이행책임이 성립한 여지가 없다).

② In the event of a repurchase right, the act of ○○ City, which violated the obligation to notify and announce it to the Plaintiff, is deemed a tort resulting from the infringement of the right to a new purchase and sale contract (in the future, regardless of the acquisition by agreement as the contract) by the Plaintiff.

③ If the Plaintiff refused to acquire land through consultation and followed the procedure for public expropriation under the Land Expropriation Act, such expropriation does not have the nature of a sales contract, and there is no room to apply Article 21 of the Income Tax Act differently from this case. In light of the fact that it seems unreasonable to determine whether to impose taxes depending on the difference in the method of acquiring real estate, etc., the instant damages cannot be deemed as penalty or indemnity received due to breach or termination of a contract under Article 21(1)10 of the Income Tax Act. On the other hand, the Defendant ○○ Head of the tax office, while the cause of the instant damages is found in the acquisition through consultation, which is the original contract, but the cause of the instant damages should be found in the loss of the opportunity to conclude a new sales contract.

㈐ 본래의 계약의 내용이 되는 지급자체에 대한 손해를 넘는 손해에 대하여 배상을 받았는지 여부

Even if it is based on a contractual breach as alleged by Defendant ○○○ Tax Office’s assertion, the instant damages of this case, which the Plaintiff received, are the damages paid to compensate for the actual damages suffered by the repurchase right holder, and the damages of this case, which are deemed to correspond to the scope of benefits realized (natural land price increase) in the event the Plaintiff owned the instant 1 and 2 land without an agreement acquisition. Therefore, the instant damages of this case, as a mere compensation for the damages itself, cannot be deemed to have received compensation for the damages exceeding the damages to the payment itself, which is the contents of the original contract

㈑ 이 사건 양도소득세 부과처분의 하자가 취소(또는 무효)사유 인지 여부

In order for the taxation disposition to be null and void as a matter of course, it is insufficient to say that there is an illegal cause, and its defect is in violation of Acts and subordinate statutes, objectively apparent, and objectively. In determining whether the defect is significant and obvious, it is necessary to examine the purpose, meaning, function, etc. in the laws and regulations which form the basis for the taxation disposition in question from a teleological perspective and to reasonably consider the specificity of the specific case in light of the above legal principles (see Supreme Court Decision 90Meu10862, Nov. 27, 1990). In light of the above legal principles, the imposition of the income tax in this case on the Plaintiff, who did not have any factual relations, such as legal relations or income or act subject to taxation by the head of ○○○ Tax Office, can be deemed as serious, but in this case, it cannot be said that the administrative disposition was taken differently by interpreting the tax basis provisions, and it is apparent that the defect merely misleads the fact of taxation. Therefore, it is not clear that the defect of the taxation disposition in this case constitutes grounds for revocation.

D. Determination on the claim against Defendant ○○ Market

As seen earlier, as long as the disposition imposing income tax of this case is unlawful, the disposition imposing resident tax of this case on this premise shall be unlawful, and the disposition shall be revoked.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is justified and it is so decided as per Disposition by the assent of all.

public official law, order of law,

○ Income Tax

Article 21 (Other Incomes)

(1) Other income shall be any of the following incomes, other than interest income, dividend income, real estate rental income, business income, labor income, annuity income, retirement income, and capital gains:

10. Overdue charge or indemnities caused by a breach or cancellation of a contract;

○ Enforcement Decree of Income Tax

Article 41 (Scope, etc. of Other Incomes)

(7) The term "compensation" in Article 21 (1) 10 of the Act means the amount of money or other valuables to compensate for the damages exceeding the damages to the payment itself which forms the contents of original contract, regardless of the title thereof, which are received due to a breach or termination of a contract on the property right. In such cases, if the amount paid initially under the contract on money, etc. received due to a breach or termination of a contract does not exceed the amount paid initially under the contract on money, etc. received due to a breach or termination of a contract, it shall not be deemed as the provisional payment of money, etc. in excess of the damages to the payment itself (Article 21 (2) 28

○ Local Tax Act

Article 110 (Non-Taxation on Acquisition, etc. of PseudoOwnership)

No acquisition tax shall be levied on the following:

2. Acquisition by exercise, etc. of the redemptive right, and falling under any of the following subparagraphs:

나. ⌈공익사업을 위한 토지 등의 취득 및 보상에 관한 법률⌋의 규정에 의한 환매권의 행사로 매수하는 부동산의 취득

Article 128 (Non-Taxation on Acquisition, etc. of PseudoOwnership)

No registration tax shall be imposed on the following:

2. Registration by exercise of a redemptive right, and falling under any of the following subparagraphs:

가.⌈공익사업을 위한 토지 등의 취득 및 보상에 관한 법률⌋에 의한 환매권의 행사로 매수하는 부동산에 대한 등기

§ 172. Definitions

For the purpose of resident tax,

3." 소득세할" 이라 함은 ⌈소득세법⌋의 규정에 의하여 납부하여야 하는 소득세액(소득세 과세표준 확정 신고자로서 당해 신고세액의 전부 또는 일부를 납부하지 아니한 데 대한 납부불성실가산세는 제외한다)을 과세표준으로 하는 주민세를 말한다.

Article 173 (Person Liable for Tax Payment)

(2) A taxpayer to whom income is to be distributed shall be an individual or corporation liable to pay income tax, corporate tax, and agricultural income tax in a Si/Gun.

Article 176 (Tax Rates)

(2) The standard tax rates to be derived shall be as follows:

Pro rata income tax: 10/100 of the income tax amount;