A. Whether the payer’s withholding duty can be established where the recipient’s income does not establish the source tax liability (negative)

B. Criteria for determining whether income accrues in order to establish the source tax liability of recipients of income

(c) Whether there occurs a withholding obligation where a dispute arises between the payer of income and the beneficiary on the existence or scope of the claim and the lawsuit

D. Whether the payer may collect and deduct the source tax prior to the due date of the income amount (negative), and whether the scope of the income subject to withholding tax reduces as a matter of course the source tax amount (negative)

(e) Where a withholding agent of income tax, etc. orders a retirement allowance for which withholding taxes are not deducted, the method of withholding income tax, etc.;

(f) Where an employer paid a retirement allowance to a worker while handling interim retirement, but the above disposition of retirement becomes null and void, the case holding that the amount equivalent to the legal person responsible for reorganization does not constitute unjust enrichment from the day following the payment of the retirement allowance already made until the final retirement;

A. The fact that the payer of income under the Income Tax Act bears the obligation to pay withholding taxes is premised on the recipient’s source tax liability. Therefore, in a case where the recipient’s source tax liability is not constituted, the payer’s obligation to pay withholding taxes may not be established.

B. In order to establish the source tax liability of the recipient of the income, income should be generated, which is subject to income tax, and in order to realize the income, the income should be realized, even if it is not necessary to realize the income in reality, at least the right to generate the income should be mature and confirmed to the extent that it is considerably high in

C. In a case where a dispute arises between a payer of income and a beneficiary regarding the existence or scope of a claim due to a dispute, if such dispute cannot be deemed to be obviously unfair in light of the nature of the case, it cannot be deemed that the profit has been determined, and thus, it cannot be deemed that the original tax liability has been established or

D. The duty to pay income tax withheld under Article 21(2)1 of the Framework Act on National Taxes is, in principle, established when the amount of income is paid, and the time when the recipient’s obligation to pay the income tax is established is also the same. Thus, the payer cannot collect and deduct the source tax prior to the payment date of the above amount of income, and the scope of income itself cannot be said to be reduced by the amount of the source tax as a matter of course on the ground that it is the income subject to withholding.

(e) Where a person liable for withholding income tax, etc. orders the payment of retirement allowances for which withholding tax has not been deducted in a lawsuit, the person liable for withholding shall be required to withhold income tax, etc. at the stage of payment of retirement allowances according to the final and conclusive judgment, and if a recipient of income refuses to receive retirement allowances after deducting withholding tax amount, he may be exempted from his obligation by paying

(f) The case holding that the statutory interest at the rate of 5 percent per annum from the day following the payment of the retirement benefits already made does not constitute unjust enrichment on the ground that where the employer paid the retirement benefits to a worker while conducting interim retirement, but the above retirement benefits are invalidated, it cannot be deemed that the payment is made by mistake, and thus, it does not constitute unjust enrichment.

(a) Article 142(1)(b) of the Income Tax Act; Article 28(d) of the same Act; Article 21(2)1 of the Framework Act on National Taxes and Article 21(e) of the Income Tax Act; Article 149 of the same Act; Article 743 of the Civil Act; Article 28 of the Labor Standards Act

A.B. (C) Supreme Court Decision 87Nu407 Decided September 27, 198 (Gong1988, 1349) (Gong1349). D. Supreme Court Decision 91Da43718 Decided May 26, 198 (Gong1986, 3143). Supreme Court Decision 86Nu323 Decided October 28, 1986 (Gong1986, 3143). (b) Supreme Court Decision 85Nu26 Decided June 11, 1985 (Gong1985, 1017), Supreme Court Decision 85Nu374 Decided November 26, 198 (Gong1986, 152), Supreme Court Decision 86Da287288, Oct. 24, 198 (Gong19638, Nov. 16, 198).

[Plaintiff-Appellant] Park Jong-sung et al., Counsel for plaintiff-appellant

Attorney Hong-chul, Counsel for the plaintiff-appellant-appellant

Supreme Court Decision 90Da13222 Delivered on May 24, 1991

Seoul High Court Decision 91Na24474 delivered on September 27, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

On the first ground for appeal

1. The fact that the payer of income under the Income Tax Act bears the obligation to pay withholding taxes on the premise that the beneficiary bears the obligation to pay withholding taxes. Thus, in a case where the beneficiary's obligation to pay withholding taxes is not established, if the beneficiary's obligation to pay withholding taxes is not established, the payer's obligation to pay withholding taxes cannot be established. In order to establish the beneficiary's obligation to pay withholding taxes, the beneficiary's obligation to pay withholding taxes must generate income which is subject to income tax in order to realize the beneficiary's obligation to pay withholding taxes. In this context, even if it is not necessary until the income is realized, the right to generate income is considerably high and definite in the possibility of realizing the income. If a dispute between the payer of income and the beneficiary over the existence or scope of the claim, and if it is not clearly unreasonable in light of the nature of the case, it cannot be deemed that such dispute has become final and conclusive, and thus, it cannot be deemed that the source tax liability

In addition, the obligation to pay income tax withheld under Article 21 (2) 1 of the Framework Act on National Taxes is established when the amount of income is paid in principle, and the time when the recipient's obligation to pay the income tax is established also. Thus, the payer cannot deduct the source tax in advance prior to the payment date of the above amount of income (see Supreme Court Decision 86Meu2872 delivered on October 24, 1988), and the scope of income per se cannot be said to be reduced to the extent of the source tax as a matter of course on the ground that it is an income subject to withholding.

2. Therefore, the court below's order ordering the defendant to pay a retirement allowance which has not deducted the withholding tax in this case cannot be deemed unlawful, and in this case, the defendant can withhold the income tax at the stage of paying the retirement allowance after the decision of this case became final and conclusive, and if the plaintiff refuses to receive the retirement allowance after deducting the withholding tax amount, he can be exempted from his liability by depositing the payment for the retirement allowance.

When the court below rejected the defendant's assertion on this point, it is not appropriate or unnecessary to make an unnecessary decision that the defendant did not find a trace of the payment of withholding taxes as one of the reasons. However, this does not affect the result of this case.

3. On May 23, 1989, Supreme Court Decision 87Meu2132 Decided party members did not hold that in the same case as this case, there is a duty to pay only the remaining amount after deducting withholding tax in the same case, and thus, it cannot be a proper precedent in this case, and the remaining precedents of the theory of lawsuit are not appropriate in this case, and it cannot be said that there are other errors in the misapprehension of legal principles, such as the theory of lawsuit, or in the incomplete hearing, in the judgment below.

On the second ground for appeal

1. According to the records, the defendant asserted on September 12, 1991, stated on September 12, 1991 in the court below's 8th day for pleading that the defendant should deduct legal interest at the rate of 5% per annum from the day following the payment of retirement allowances already paid by the defendant to the day of final retirement. It is true that the court below accepted only the claim for the deduction of retirement allowances already paid and the claim for the deduction of legal interest to the legal interest.

2. However, in light of the facts acknowledged by the court below, in this case, the defendant's payment of retirement allowances to the plaintiff while conducting interim retirement in form does not constitute a case where the payment of retirement allowances to the plaintiff is made by mistake, and thus, the legal interest claim shall be rejected.

3. If so, the lower court’s rejection of the judgment does not affect the outcome of the instant case, and therefore, it returned to the absence of reasons.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)