Seoul Administrative Court 2009Guhap27534 ( October 22, 2009)

early 2009west0496 (Law No. 204.20 April 2009)

No retirement allowance under the rules for payment of retirement allowances applicable to an unspecified number of unspecified retirement workers shall be deemed a retirement allowance.

In light of the fact that it was calculated by an employment contract without the rules on payment of retirement allowances related to officers, and that it was withheld at the payment office by deeming it as employment income, it cannot be viewed as retirement allowance under the rules on payment of retirement allowances applied to unspecified retirement workers

209Nu36820 global income and revocation of disposition

tanks 00

Head of the District Tax Office

Seoul Administrative Court Decision 2009Guhap27534 Decided October 22, 2009

June 2, 2011

July 7, 2011

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. The imposition of global income tax of KRW 46,790,080 against the Plaintiff on November 5, 2008 by the Defendant shall be revoked.

1. Details of the disposition;

The court's explanation on this part is the same as the reasoning of Paragraph 1 of the judgment of the court of first instance, and therefore, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The reason why the court's explanation on this part is that the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same) shall be applied to the third party's "Enforcement Decree of the Income Tax Act" of the first instance judgment, and except for adding the following arguments under the third party's 7th part, it shall be as stated in Article 2-A of the reasoning of the first instance judgment. Thus, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act,

【Additional Claim】

Even though it cannot be deemed that the payment provision of retirement benefits applied to a large number of non-specified retirement workers, the Labor Standards Act stipulates that the amount of the instant monetary amount shall be paid for one-month pay as retirement allowances for one year of his/her term of office under the Labor Standards Act, and includes the same contents as the 00 bank's executive remuneration and security rules made after the retirement of the Plaintiff. Thus, at least 41,66,674 won equivalent to the average wage for two months should be classified as retirement income. Nevertheless, the entire amount of the instant monetary amount

The instant disposition against which the comprehensive income tax is imposed on the grounds that it is deemed as earned income is unlawful (preliminary assertion).

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Determination

(1) Article 20 (1) 1 (d) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; hereinafter the same) includes "income received due to retirement, which is not included in retirement income, among income generated in the pertinent year." Article 38 (1) 13 of the former Enforcement Decree of the Income Tax Act stipulates "retirement allowance, retirement bonus and other similar salaries which are received due to retirement and which are not included in retirement income" as earned income. In addition, Article 22 (6) of the former Income Tax Act provides that "the scope of retirement income shall be determined by Presidential Decree."

Article 42-2 of the former Enforcement Decree of the Income Tax Act provides for the scope of retirement income.

The retirement benefits payment rules, employment rules, or labor-management agreements that apply to a large number of non-specified retirement workers in subparagraph 4 are included in retirement income.

(2) In light of the overall purport of the arguments in this case, the health class Nos. 1, 1-2, and 5-1, 2, 3, and 5-1, 6-2, 2, and 6-2, 2, and 3 of the evidence Nos. 5-2, 2, and 3 of the above-mentioned evidence, and the fact-finding results of the fact-finding with respect to 00 banks of this court, ① the employment contract of this case, 00 banks shall be paid 250 million won as basic annual salary to the Plaintiff, and the basic annual salary shall be reviewed by the procedures of the performance management and benefit review of the bank each year, and 00 banks shall be notified in writing before 180 days if the contract is terminated due to reasons other than those specified in the employment contract, and the Plaintiff may receive retirement allowances equivalent to 1 month’s annual allowance if the Plaintiff waives all rights to 00 banks, and the retirement consolation benefits when the contract is terminated due to reasons other than the reasons stated in the employment contract.

Article 38(1) of the articles of incorporation of the 00 bank provides that "The payment of retirement allowances to directors shall be governed by the retirement allowance rules for executives", but the 00 bank did not provide for the payment of retirement allowances related to executives at the time of retirement of the plaintiff. (3) The 200 bank's guidelines for the executive officer's payment of retirement allowances (Evidence A-3) provides that the executive officer's payment of retirement allowances shall be made as retirement allowances by multiplying the average salary for the three months before retirement when the termination of the contract or the reasons for the 200 bank's dismissal from office occur. (4) The "Working Rules for the Remuneration and Expenses of 00 Bank" (Evidence A-6) provides that the executive officer's payment of retirement allowances shall be made as retirement allowances for the one year of employment of the executive officer who has worked for at least one year, and that the payment of retirement allowances shall be made in addition to the expiration of the contract and the payment of retirement allowances for the nature of the retirement allowances as stipulated in the individual contract.

The contents of the agreement vary depending on officers, and accordingly, it can be recognized that 00 banks have paid retirement allowances, etc. for each of them, and the following circumstances, which can be recognized by comprehensively considering the facts and evidences prior to the recognition and the overall purport of the pleadings, i.e., the Plaintiff, upon retirement of 00 banks, received the instant money in lump sum, but on the other hand, 00 banks concluded with the Plaintiff.

According to the terms of the employment contract of this case, the amount to be paid at the time of retirement was calculated and the retirement contract was concluded with the plaintiff based on this, and the plaintiff was paid the money of this case to 00 banks at the time of the plaintiff's retirement, 80 banks did not have a provision on the payment of retirement allowances related to officers at the time of the plaintiff's retirement, 'the guidelines on the payment of retirement allowances related to officers at 00 banks', 'the guidelines on the payment of wages and expenses' were made after the plaintiff's payment of the money of this case. 90 banks are not the amount calculated in accordance with the above provisions. 90 banks paid the money of this case to the plaintiff, 90 banks are not the amount calculated in accordance with the above provisions, 00 banks are regarded as wage and salary income, 00 banks received by the 00 banks before and after the retirement contract with the plaintiff, and their amount or criteria were not different according to the employment contract of each period, and the plaintiff's payment of retirement allowances or other similar salary benefits cannot be viewed as the plaintiff's payment of this case.

(3) Furthermore, the part of KRW 41,66,674, equivalent to the average wage for February of the instant amount, shall be deemed retirement income (preliminary assertion), and even in a case where a retirement allowance is paid to an officer such as a director, etc. under the company's regulations, such retirement allowance is not a retirement allowance under the Labor Standards Act, but a remuneration paid in return for the performance of duties while in office (see, e.g., Supreme Court Decisions 87Meu2268, Jun. 14, 198; 200Da61312, Feb. 23, 2001); and even according to the Plaintiff's above assertion, the amount of KRW 41,66,674, out of the instant amount, cannot be deemed as a retirement allowance under the Labor Standards Act.

In addition, according to macroscopic evidence, the plaintiff did not receive the money of this case or part of it from the 00 bank as a statutory retirement allowance as stipulated in the Labor Standards Act, nor received it by 00 bank's "executive officers, remuneration and security rules". Thus, the plaintiff's assertion on this part (preliminary assertion) under different premise is without merit.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.