In the case of a full-time conversion, the starting point of calculation of the retirement income deduction amount

If retirement benefits of different nature are paid together, it is reasonable to interpret that the number of years of continuous service, which is the basis of calculating the retirement income tax, should be calculated on the basis of the period of work of the retired worker in consideration of the amount of the relevant retirement benefits paid to the retired worker.

Articles 22 (1) 2 and 48 (1) of the Income Tax Act

2017Guhap73471. Revocation of a disposition of dismissal of order

KimA and 8

00. Head of tax office and 5

October 18, 2018

January 17, 2019

1. A. Defendant 00 Head of the tax office: (a) granted to Plaintiff KimA on February 9, 2017; (b) Defendant 00 Head of the tax office rendered to Plaintiff SongB on November 11, 2016; and (c) Defendant 00 Head of the tax office rendered to Plaintiff headCC on December 12, 2016; (d) Defendant 00 Head of the tax office granted to Plaintiff DuD on January 2, 2017; (e) Defendant 00 Head of the tax office granted to Plaintiff E, NaF on November 10, 2016; and (e) Defendant 00 Head of the tax office rendered to Plaintiff MaG on January 17, 2017; and (e) the disposition and disposition of rejecting the respective tax base and amount of tax imposed on Plaintiff HaH on January 10, 2017.

B. On February 3, 2017, the head of the tax office’s imposition of retirement income tax of KRW 14,459,950 by Defendant 00 shall be revoked in entirety.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. From April 1, 200 to October 1, 2003, the Plaintiffs were employed and worked as contractual office staff in the KR Bank Co., Ltd. (hereinafter referred to as the “KR Bank”).

B. From November 29, 2013 to December 5, 2013, K Bank offered an internal recruitment for new L0 classes for office employees. At that time, K Bank notified the subjects of the fact that, “K Bank may settle the retirement pay, etc. according to the termination of current employment contract,” and the continuous employment period to apply the retirement pay, annual leave, and other personnel system, etc. after new employment does not include the period during which K Bank may set a separate operational standard, but if necessary, K Bank may set a separate operational standard.”

C. On December 3, 2013, the Plaintiffs submitted to KK Bank a written consent for the application for employment of L0 classes, a private employee, and a new employment contract to the KK Bank, and subsequently adjusted retirement allowances following the termination of the employment contract on January 1, 2014, and elevated to L0 class regular employees.

D. On May 2015, K Bank labor and management reached an agreement on voluntary retirement (hereinafter referred to as “the instant voluntary retirement”) with the content that: (a) voluntary retirement should be made against the “persons subject to voluntary retirement” as indicated below; (b) special retirement allowances corresponding to the number of months indicated in the “number of months of payment of special retirement allowances” as indicated in the following table, in addition to statutory retirement allowances, and employment assistance amounting to KRW 24,000,000, health examinations, and achievements equivalent to KRW 118,000 (excluding statutory retirement allowances).

E. When calculating the retirement income tax of prospective retirees of L0 classes, K Bank, without distinguishing between the statutory retirement allowances that completed interim settlement and the instant special retirement allowances, etc., deemed that the initial date of calculation of the number of years of continuous service was January 1, 2014, which was the same as the date when the number of years of continuous service was transferred to the members of the general service of class L0 class, and “the number of years of continuous service of the Plaintiff is 1.6 years (from January 1, 2014, which is the date of full-time conversion to the date of retirement to June 17, 2015),” and withheld each income tax (see Table 1) as indicated below.

F. The Plaintiffs filed a request for correction of retirement income tax reduction with the purport that the Plaintiffs’ continuous service years, which serve as the basis for calculating the retirement income tax on the special retirement allowances in this case, should be calculated from the date of their initial employment (hereinafter “instant request for correction”) (hereinafter “instant request for correction”).

G. Of the instant claim for correction, the Defendants dismissed the remainder of the Plaintiffs’ request for correction on the date indicated in the “the date of the refusal of the instant Table” (hereinafter “instant refusal disposition”). However, on October 20, 2016, Defendant 00 chief of the tax office notified the Plaintiff that the Plaintiff would refund KRW 00,000,000 to the said Plaintiff upon partially accepting the Plaintiff’s request for correction on the date of commencement of the service year, and the date of commencement of the service year for the instant special retirement allowances should also be deemed to be the date of conversion of L class rather than the date of initial employment period (hereinafter “the date of refusal disposition”). However, on February 3, 2017, Defendant 00 chief of the tax office notified the Plaintiff that the Plaintiff would return KRW 00,000,000,000, which was due to the error in the date of commencement of the service year, and the date of commencement of the service year for the instant special retirement allowances should also be deemed to be the date of conversion of L class.

H. The remaining plaintiffs filed an appeal seeking revocation of the instant disposition of refusal and the Plaintiff’s simpleJ, but the Tax Tribunal dismissed the remaining plaintiffs’ appeal on May 11, 2017 and the Plaintiff’s simpleJ on June 5, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1 to 6 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiffs' assertion

A) In calculating the Plaintiffs’ retirement income tax, the Defendants calculated the number of years of service on the basis of the conversion date of general service rather than the initial retirement days. However, unlike statutory retirement allowances, special retirement allowances received by the Plaintiffs in return for desired retirement are not remuneration for work from the conversion date of general service, but compensation for long-term service from the initial retirement date to the retirement date. Therefore, it is reasonable to calculate the number of years of service to be applied when calculating the retirement income tax for special retirement allowances (hereinafter referred to as “the number of years of service for calculation of income tax”) is to start from the initial retirement date. Thus, the instant disposition under the premise that the period of service to be applied when calculating the retirement income tax for special retirement allowances is calculated is not included in the number of years of service before the transition of L0. Moreover, there are cases where the claim for correction was accepted for a number of other employees converted to general service as the Plaintiffs, and KK Bank also withheld the retirement income tax for those employees who received special retirement allowances after the decision of correction, which is contrary to equity. In particular, it is against the principle of correction of the Plaintiff J.

B) In calculating the retirement income tax on the instant special retirement allowances, etc., there is no difference between the deduction amount calculated by counting the initial membership date as the starting point of calculation of the number of years of continuous service and the deduction amount calculated by counting the conversion date of L0 class after the interim settlement. Therefore, the problem of duplicate deduction pointing out by the Defendants is rarely not to occur. Rather, the issue of double deduction pointing out by the Defendants is that the calculated retirement income tax amount under Article 55(2) of the former Income

2) The defendants' assertion

A) The instant special retirement allowance, etc. is merely the amount of compensation paid to induce early retirement. Accordingly, it cannot be deemed that it constitutes the amount of money of merit compensation for long-term service including the Plaintiffs’ period of service before full-time retirement conversion. According to Article 105(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 28637, Feb. 13, 2018; hereinafter the same), the number of years of service calculated for income tax on the said special retirement allowance, etc. includes only the period of service after the date of conversion of the Plaintiffs’ number of years of service after the said special retirement allowance is included, and the Plaintiffs also submitted a written consent by recognizing such mutual agreement at the time of conversion of the L0 degree. Moreover, even if there is no reason to treat the contract-based employees and full-time employees as the Plaintiffs, it cannot be deemed that the Defendants were bound by other tax authorities or expressed any public opinion by Defendant 00, who received a request for correction against Plaintiff MaJ by mistake. Ultimately, the Plaintiffs’ retirement allowance at the instant special retirement allowance at the time of retirement.

B) Even if the number of years of service is calculated on the basis of the initial membership date as alleged by the Plaintiffs, if the National Tax Service, which was an administrative rule, applies the income tax enforcement standard in 22-105-2 (i.e., the number of years of service for voluntary retirement, etc.) 22-105-2 (i.e., the number of years of service for voluntary retirement, etc.), which was established by the National Tax Service in 2014 (hereinafter referred to as the “income tax enforcement standard”), the tax amount actually

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) Upon retirement on June 17, 2015, the date of retirement, the Plaintiffs received retirement allowances from K Bank as shown below [Attachment 2].

2) On January 1, 2014, under the labor-management agreement on the improvement of the personnel system of office workers, KK bank newly established a class of L0 by changing the general service class system from the former fourth class system (L1, L2, L3, L4) to the five class system (L0, L1, L2, L2, L3, L4). From among the office employees, KK bank converted the employees who applied for the full-time conversion into the general service class of L0.

3) On January 1, 2014, the change of the general service class L0, supra, was conducted in the form of new employment through the procedures of submission of private employees, the settlement of retirement allowances, subscription for new employment, and the preparation of employment contract. At the time, the Plaintiffs submitted a written consent stating that the continuous period of employment to apply the retirement allowances, annual leave, and other personnel systems, etc., shall be newly calculated from January 1, 2014, and the continuous period of employment is not included in the continuous period of employment under this Article unless there is any separate provision or agreement on the period of employment. However, in the process, the Plaintiffs and the full-time employees, including the Plaintiffs, continued to perform the same work as that of the full-time employees before

"4) On June 2015, K Bank announced the desired retirement of this case in the form of "H Q&A;" the criteria for calculating the continuous service period in the form of "H Q&A;" means the date of entry or the date of re-employment, such as conversion after retirement, if the date of entry is changed, the period of service shall be calculated on the basis of the changed date of entry; and in the case of L0 class employees, the number of years of service is shorter than one year and six months, and the high retirement income tax rate of about 16% shall be applied." (5) K Bank calculated the number of years of employment from the first entry to the date of the first entry when it withheld the income tax for the employees who did not convert into L0 among the employees who were desired to retire according to the desired retirement agreement in this case, and calculated the number of years of employment for the portion of special retirement allowances, such as L1, L2, L3, L4 general employees and fathers.

6) Meanwhile, the employees who paid retirement income tax in the same manner as the Plaintiffs were subject to a decision of acceptance by filing a claim for correction of income tax with the same purport with the tax authority. After such a decision of acceptance, KK Bank made a desired retirement on July 8, 2016 and withheld retirement income tax from the employees of L0 class who received special retirement allowances based on the date of their initial employment.

[Reasons for Recognition] Facts without dispute, Gap evidence 4 through 25, evidence 31 through 35, evidence 38, evidence 49, evidence 1 through 6, evidence 12 through 20 (including each number), and the result of a fact inquiry to KK Bank in this Court, the purport of the whole pleadings

D. Determination

1) Article 22(1)2 of the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014; hereinafter the same) stipulates “income received as a result of a realistic retirement” as one of retirement income based on employer charges incurred in the pertinent taxable period.

Article 48 (1) of the former Income Tax Act on retirement income provides that "the amount equivalent to 40/100 of the amount of retirement income shall be deducted in order from the amount of retirement income in the relevant taxable period (if there is a period less than one year, it shall be deemed one year), and Article 55 (2) of the former Enforcement Decree of the Income Tax Act provides that "the amount of income tax on retirement income of a resident shall be calculated in the following order." Article 48 (1) of the former Income Tax Act provides that "the amount calculated by dividing the tax base of retirement income in the relevant taxable period by the number of years of continuous service," subparagraph 1 of subparagraph 2 by the amount calculated by applying the tax rate of paragraph (1) 1, subparagraph 3 by the amount calculated by dividing subparagraph 2 by subparagraph 5, subparagraph 2 of subparagraph 5, and Article 105 (1) of the former Enforcement Decree of the Income Tax Act by the number of years of continuous service or the amount calculated by multiplying by the number of years of continuous service."

On the other hand, Article 22-105-2 (Period of Service, etc. for Voluntary Retirement Payments) Paragraph 1 of the Income Tax Enforcement Standard, which is an administrative rule, stipulates that where retirement allowances and honorary retirement allowances are paid to an employee who has made an interim settlement of retirement allowances at the time of his/her final retirement, the number of years of service for retirement allowances shall be counted from the time of interim settlement of accounts to the date of

In full view of the contents and purport of the above-mentioned relevant statutes, if retirement benefits of different nature are paid together, it is reasonable to interpret that the number of years of continuous service, which is the basis of calculating retirement income tax, should be calculated on an individual basis of the period of the retired worker’s work considering the amount of the relevant retirement allowance paid to the retired worker.

2) Comprehensively taking into account the facts acknowledged earlier and the purport of the entire pleadings, the instant special retirement allowances, etc. can be deemed as having been paid as a contribution compensation for the long-term continuous service, summing up the period of service from the date of the first entry to the date of the final retirement. As such, when calculating the Plaintiffs’ retirement income pursuant to Articles 48 and 55(2) of the former Income Tax Act and Article 105(1) of the former Enforcement Decree of the Income Tax Act, the number of years of service, which serves as the basis for calculating the income tax, is reasonable based on the number of years of service from the date of the first entry to the date of the final retirement of the Plaintiffs. The Plaintiffs’ assertion is with merit, and

① In the case of L1, L2, and L3 positions, the instant desired retirement explicitly stated that the expected retirement was a condition under which a person subject to a desired retirement may receive the instant special retirement allowance for a long-term continuous service by restricting the person subject to a desired retirement to an employee “not less than 15 years of continuous service.” On the other hand, with respect to the father, L4, L0, and clerical staff, there is no separate provision regarding the number of years of continuous service as the requirements for a desired retirement, but with respect to the other employees, the additional director, and L4 class employees are guaranteed that the number of years of continuous service has been met for a certain period of time only by the class of employees, and all of L0 class employees were converted to full-time employees who were born before December 31, 1970, and there was no need to separately limit the number of years of continuous service. Accordingly, there is no separate provision regarding the number of years of continuous service. Therefore, it cannot be deemed that a special retirement allowance paid to L0 is paid to L1, L2, and L3 classes.

② At the time of the agreement on voluntary retirement, the letter of confirmation of the fact that the agreement on voluntary retirement was made by hand, who attended as a negotiating member of the trade union at the time of the agreement on voluntary retirement, was basically conducted for a person with continuous service for a certain period of more than 20 years. The vice head and L4 employees did not separately impose restrictions on the continuous service period because they were long-term employees with a minimum of 20 years of continuous service without exception. The vice head and L4 employees did not separately indicate the continuous service period considering that the employees who were born before December 31, 1970 were the long-term employees with a minimum of 10 years of continuous service.

③ In a case where a worker is employed as a temporary employee and has been employed as a regular employee and has been employed without any blank period during his/her continuous service period, the total period of his/her work as a temporary employee and the period of work as a regular employee should be considered as the number of consecutive years of work, which serves as the basis for the calculation of retirement allowances even in a case where the form of work provided is changed during his/her continuous service period (see, e.g., Supreme Court en banc Decision 93Da26168, Jul. 11, 1995). Since L0-class transition employees, including the Plaintiffs, carried out almost the same work at the same place of work as the previous one without any suspension of work as other employees who did not change their position even after his/her transition, even if the Plaintiffs underwent the adjustment and new employment procedure while changing his/her position as L0 class, such procedure is merely the procedure conducted in the process of changing the form of work, and thereby,

④ The continuous period of employment to apply retirement allowances, etc. at the time of the public announcement of the public announcement of the public announcement of recruitment of L0-class employees by the KK Bank does not include the period of continuous employment as office employees. The continuous period of employment to apply retirement allowances, etc., even in the written consent submitted by the Plaintiffs, is newly calculated from January 1, 2014, and the period of continuous employment as office employees is excluded from the continuous period of employment unless there is any separate provision or agreement on it. However, it cannot be deemed that the aforementioned retirement allowances include the instant special retirement allowances, etc. due to the voluntary retirement, which was entirely unexpected at that time.

⑤ In concluding the instant desired retirement agreement, the KK Bank set the same requirement as “persons subject to voluntary retirement” for L0 classes and U.S. conversion staff, and recognizes them as the number of months of retirement corresponding to 30 months, such as L1 staff with at least 15 years of continuous service, it seems that the foregoing written consent and written resignation would limit the continuous service period for the instant special retirement allowances to the period of service after the transition to L0 classes.

(6) Even if the instant special retirement allowance, etc. has the nature of compensation for early retirement, it may coincide with the nature of compensation for long-term continuous retirement, and the period from the conversion of the retirement class of the voluntary retirees including the Plaintiffs to the retirement to the retirement period is merely one year and six months, and it is difficult to deem that KK Bank decided to pay a special retirement allowance, etc. equivalent to the amount of wages for 30 months to the voluntary retirees of the aforementioned service period, taking into account only the aforementioned service period.

3) Determination as to the assertion regarding legitimate tax amount

Under the premise that the number of years of service affects only the amount of retirement income deduction under Article 48(1)2 of the former Income Tax Act in calculating the retirement income tax as to the special retirement allowances in this case, the Defendants asserted that even if they received the Plaintiffs’ claim on the number of years of service calculated, overlapping between the two two different periods of service, such as interim settlement retirement allowances, retirement allowances paid at the time of final retirement, special retirement allowances, etc., shall not be allowed as prescribed in Article 22-105-2(the number of years of service, etc. for voluntary retirement allowances, etc.) of the Enforcement Standard of Income Tax, as provided in Article 22-105(2) of the former Income Tax Act.

First of all, even in cases where the number of years of service is calculated based on the plaintiffs' initial membership dates, the argument that double deduction for retirement income deduction amount already deducted when interim settlement is made pursuant to Article 22-105-2 (2) of the income tax enforcement standard is reasonable. In addition, in cases where the deduction amount is calculated by applying the provision excluding double deduction, even if the deduction amount under Article 48 (1) 2 of the former Income Tax Act is calculated according to the number of years of service as of the base date of the plaintiffs' initial membership dates, there is no particular dispute between the parties that there is no amount to be additionally deducted, or that there is no amount to be deducted when calculating the deduction amount under the above provision according to the number of years

However, as seen earlier, the plaintiffs' length of service, as well as the deduction amount calculated pursuant to Article 48 (1) of the former Income Tax Act on retirement income deduction, has an influence on the calculated retirement income tax amount calculated pursuant to Article 55 (2) 1 of the same Act (the amount calculated by dividing the retirement income tax base in the pertinent taxable period by the number of years of service). The reasonable tax amount derived when calculating the calculated retirement income tax amount under Article 55 (2) of the former Income Tax Act according to the number of years of service calculated based on the date of initial employment of the plaintiffs according to the number of years of service calculated based on the number of years of service calculated based on the date of initial employment of the plaintiffs, as shown in the case where the plaintiffs presented detailed calculation details in the preparatory document dated October 17, 201

Therefore, even if the plaintiffs' claims regarding the number of years of continuous service were accepted, the defendants' assertion that the claim for correction of this case is groundless because there is no particular difference in the retirement income tax amount to be paid by

4) Scope of revocation

The issue of whether a disposition is lawful is determined depending on whether it exceeds a legitimate tax amount. The parties can submit objective tax bases and materials supporting the tax amount until the closing of arguments in the fact-finding court. When computing the legitimate tax amount to be imposed lawfully based on such materials, only the portion exceeding the reasonable tax amount should be revoked. However, unless otherwise, the entire taxation disposition should be revoked (see, e.g., Supreme Court Decision 2015Du622, Sept. 10, 2015).

As seen earlier, the instant disposition is erroneous in calculating relevant retirement income tax, such as the instant special retirement allowance, for the Plaintiffs, regarding the starting point of starting the continuous service period as the conversion date of L0 class rather than the Plaintiffs’ initial subscription date.

However, it is unclear whether the Plaintiffs excluded duplicate deduction pursuant to Article 22-105-2(2) of the Income Tax Enforcement Standard 22-105-2(2) as pointed out by the Defendants when filing the instant claim for correction, and the Plaintiffs are somewhat different from the legitimate tax amount calculated with respect to Plaintiff SongCC as at the time of the instant claim for correction. In light of the fact that there is a difference between the legitimate tax amount calculated with respect to Plaintiff SongCC in the preparatory document dated October 17, 2018, and the legitimate tax amount calculated as at the time of the instant claim for correction, it is deemed that the KK Bank’s tax amount to be revoked in excess of the legitimate tax amount, out of the tax amount withheld and paid by the Plaintiffs. However, the pertinent

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted in its entirety with due cause, and it is so decided as per Disposition.