(a) In cases where the notice of change of income amount recognized as the recognition of the representative of a corporation and the notification thereof has already been made after the death of the person to whom the income belongs, whether the withholding agent is liable to withhold the income (negative);

(b) For Class A earned income of which withholding tax is omitted, the imposition of global income tax on such income earner (affirmative)

(c) The meaning of income generated as a taxable object of income tax and the criteria for judgment thereof;

(d)where there is a difference between the time of accrual of a right to obtain income and the time of income realization, the time of accrual of income satisfying the taxation requirements;

(e) Where the basic purport of the position to affirm the imposition of global income tax, etc. on the income subject to withholding, the basic purpose of the position to affirm the imposition of global income tax, etc., and the actual payment time of the income subject to withholding, and the actual payment time different from the time of the income, are deemed to occur and special circumstances are deemed to make it difficult to deem that there

F. Whether the position that a withholding agent may impose income tax on any income for which he/she has failed to withhold the withholding may lead immediately to the fact that he/she can impose income tax on any income that is deemed paid by the disposition of income (negative)

(g) Limit of interpretation of Acts and subordinate statutes governing income tax that a corporation's income amount is deemed to have been paid on the day on which the notice of change in income amount was received, and the nature of the original tax liability and the income tax liability before the disposition of income is made (negative);

A. The withholding agent’s obligation of withholding income tax is deemed to be established on the date when the income amount is paid, that is, on the date when the notice of change in income amount is received, and where the person to whom the income is deemed to have been paid by the disposition of income is already deceased, there is no room for the person to whom the income is to be paid by the deceased, and there is no room for establishing the withholding agent’s obligation of withholding taxes in relation to the above.

(b) If the income tax on Class A earned income to be withheld was omitted, the income earner may impose such income tax on him as global income tax.

C. In order to ensure that certain income subject to taxation of the Income Tax Act has been realized, even if it is unnecessary to realize the income, the right to receive income should be considerably mature and finalized in light of the possibility of realizing it. Therefore, it cannot be said that there is no income generated as a subject of taxation of the income tax, and it cannot be said that there is no specific fact that the right to receive income is mature and finalized. Specifically, it should be determined by comprehensively taking into account the nature and content of each specific right and the actual facts in law.

D. When there is a difference between the time when the right to earn income and the time when the income is realized, it shall be deemed that there exists such time income on the basis of the time when a right is not realized at the time of the occurrence of income, and the method of calculating the income for the pertinent year may be the result of allowing the tax in advance on the premise that it is realized in the future, and such result is unreasonable, for example, when it is objectively evident that there is no possibility of realizing the income in the future as a legal disability, such as the time when the claim becomes virtually impossible to recover due to the debtor's bankruptcy or when the interest claim is beyond the legal interest rate, the income tax on the economic benefit shall lose the premise, and such income shall not be imposed on the taxable income.

마. 세법상 원천징수란 소득의 지급자가 그 수급자인 상대방에게 원천징수의 대상인 소득금액을 지급할 때에 그 상대방인 납세의무자의 세금을 징수하는 것으로서 과세청은 원래적 소득세의 납세의무 성립시기인 당해 과세년도 종료시까지 기다리지 아니하고서도 과세권의 조기 실현을 확보하게 되는 반면, 납세의무자로서는 납세의무의 성립이나 실현이 앞당겨 강제되어지는 것을 허용하는 제도적 장치이므로, 이미 지급된 소득에 대해 그 지급시 소득세의 원천징수가 누락되었다고 하여 당해 과세년도말에 성립하는 소득세 납세의무의 범위에서 제외되는 것은 부당하다는 것이 원천징수대상인 소득에 대해 종합소득세 등 부과를 긍정하는 입장의 기본취지이며, 따라서 소득세법이 원천징수대상인 소득의 현실지급시기와 다른 시기(또는 현실지급이 있기 전의 어느 시점)를 소득의 지급시기로 의제하여 원천징수의무가 발생하는 것으로 규정하고 있는 경우라 할지라도 소득 그 자체의 발생이 있고, 단지 그 지급시기의 확정만이 불명하거나 소득지급자의 사정으로 지체된 경우( 소득세법 제146조의2 , 제147조 , 제150조 등)에는 특별한 사정이 없는 한 그에 대한 종합소득세 등의 부과 여부를 가림에 있어 소득의 실지지급이 있은 경우와 달리 볼 것은 없다고 할 것인바, 다만 이때에도 소득의 발생이 있다고 보기 어려운 특별한 사정이 인정되면 지급의제규정을 적용할 수 없는 것이다.

F. In the event that the income is disposed of to the representative as the amount actually accrued in the business year concerned is unclear as the income is omitted or processed expenses are not included in the calculation of earnings, it is probable that the amount would have actually accrued to the representative who is the person subject to the disposition of income in the business year concerned. However, in case where the actual income is not related to the actual income, for example, in the case where the corporation denies the calculation of the income in practice and where the act is calculated in accordance with the tax law, and where the corporation did not have any relation to the calculation of the tax base, it is assumed that the income is calculated as the income in the calculation of the tax base, or where the corporation paid the interest to the creditor, but it was not recognized as deductible expenses under the tax law because the other party to the payment was excluded from the calculation of the income in excess of the statutory limit even though the other party to the payment was paid as retirement allowances for the officer, it cannot be viewed that the income is disposed of before the income is deemed to have been paid by the notice of the change in the income amount of the tax office, and it can not be determined as income.

G. The meaning of the pertinent provision of the Income Tax Act and the Enforcement Decree thereof, which states that the corporate income amount is deemed to have been paid on the date when the income amount was notified of the change in the income amount, is not deemed to have been paid on the date when the income amount was received, but rather deemed to have been paid on the date when the notice of the change in the income amount was received, should not be the basis for the expanded interpretation of the scope of the tax claim above. In addition, the existence of the pertinent taxable income is not recognized before the disposition of income was made in the establishment of the tax claim obligation by the disposition of income. As for the non-existent income, the establishment of the tax liability for income as well as the tax liability for income arising from the occurrence of income cannot be said to have been established.

(g)Article 21(1) of the Framework Act on National Taxes, Article 150(4) of the Income Tax Act, Article 198(1) and (2) of the Enforcement Decree of the same Act, Article 94-2(1)1(b)(f) of the Enforcement Decree of the Corporate Tax Act, Article 15, Article 142(c) of the Income Tax Act, Article 28(d) of the same Act;

A.B. (C) Supreme Court Decision 91Nu9527 delivered on March 13, 1992 (Gong1992,134). Supreme Court Decision 86Nu323 delivered on October 28, 1986 (Gong1986,3143) 85Nu774 delivered on February 24, 1987 (Gong1987,554 delivered on June 19, 1980) 79Nu4489 delivered on September 22, 1981 (Gong1980,12917) 79Nu347 delivered on September 28, 1988 (Gong1989,1484 delivered on March 27, 1990)

Plaintiff 1 and 2 others, Counsel for the defendant-appellant-appellee)

Head of Sungbuk Tax Office

Seoul High Court Decision 88Gu4623 delivered on February 12, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below found that the defendant's return on the tax base of corporate tax for the business year 1982 through 1986 filed by the non-party Yangyang Co., Ltd. to be income accrued from the omission of gross income and processing expenses and the denial of wrongful calculation as bonus to the non-party 1 and the non-party 2, the representative at the time of the disposition as well as the dividend income of the plaintiff and other family members living together with the above non-party 1, who were the above non-party 1, to be subject to the disposition of this case, was delivered to the non-party company on June 15, 1987. The above non-party 1, who was subject to disposition of income, determined that the tax liability cannot be established as bonus income for the year in which the non-party 1 received the above notice of the death of the representative, and it cannot be deemed that the above non-party 1 cannot be established as a corporation's tax liability for income income accrued to the non-party corporation prior to the conclusion of the tax liability.

2. First, according to the provisions of Article 24 of the Framework Act on National Taxes, the obligation to pay national taxes, additional dues and expenses for disposition on default imposed on or to be paid by the decedents is established at the end of a taxable period (Article 8(1) and (2) of the Framework Act on National Taxes, and the obligation to pay the income tax is established at the time of the termination of a taxable period (Article 8(1) and (2) of the Income Tax Act, but the obligation to pay withholding income tax is established at the time of the payment of the income amount or revenue amount, and the tax amount is determined without any special procedure at the time of the establishment of the liability to pay it, and the bonus disposed of pursuant to the Corporate Tax Act Article 150(4) of the Income Tax Act shall be deemed to be paid on the date determined by the Presidential Decree. Article 198(2) of the Enforcement Decree of the same Act shall be deemed to be paid by the relevant corporation on the date of receipt of the notice of change in income amount.

In sum with the above provisions, the withholding obligation of the withholding agent of the income tax withheld at source is deemed to be established on the date of receiving the notice of change in the amount of income, i.e., when the withholding agent of the income tax withheld at source pays the amount of income, and where the person to whom the income is deemed to receive the income from the disposition of income is deemed to have already died, there is no room for such person to pay the income tax at source. In this case, it is reasonable in light of the essence of the withholding system, that there is no room for establishing the withholding obligation of the withholding agent who is in the interest relationship with the beneficiary on the premise of the recipient’s tax payment obligation at source, and that a member has expressed the same view (see, e.g., Supreme Court Decisions 85Nu775, Feb. 24, 1987; 86Nu

3. However, if the withholding tax on Class A earned income subject to withholding is omitted, the income earner may be imposed as global income tax on the party member’s established position (see, e.g., Supreme Court Decision 79Nu347, Sept. 22, 1981). According to Article 53(3) of the Income Tax Act and Article 57(3) of the Enforcement Decree thereof, the time when the income, which is deemed as bonus, is attributed to the pertinent business year in returning the income amount or revising the determination of the corporation’s income amount. Thus, it is questionable whether the income subject to disposition of income, separate from the source tax liability, is deemed to have been established at the end of the taxable year in which the pertinent income belongs, which is the taxable year in which the pertinent income belongs, and if so, it is deemed that there is an abstract tax liability established on the inheritor, etc. who succeeds to the inheritee, and thus, the instant disposition of taxation in this case is completely legitimate as a final tax liability for the inheritor, etc.

4. However, I would like to clarify that the party members cannot accept the above defendant's argument for the following reasons.

A. First, in order to determine that certain income subject to taxation of the Income Tax Act has been realized, even if it is unnecessary, until it is practically realized, it is considerably mature and finalized in terms of the possibility of realizing the right to generate income. Therefore, it cannot be said that there has been income as a subject of taxation of the income tax, and it is not always the fact that the right to generate income is mature and finalized, and it is necessary to pay attention to the fact that a decision should be made by comprehensively taking into account the nature and content of each specific right and other de facto facts under the law (see, e.g., Supreme Court Decisions 86Nu118, Sept. 20, 198; 87Nu828, Nov. 24, 1987).

On the other hand, this is deemed to have accrued income on the basis of the time when there is a difference between the time when the right to obtain income and the time when the income is realized, and in that it is the method of calculating the income of the year concerned, it can be the result of allowing a prior taxation on an uncertain income under the premise that it is realized in the future, and such result is unreasonable, for example, when it is objectively evident that there is no possibility of realizing the income in the future as a legal disability, such as the time when the claim becomes virtually impossible to recover due to the debtor's bankruptcy or when the interest claim is beyond the legal interest rate, the income tax on the economic benefit should lose its premise, and it is impossible to impose income tax on the income as taxable income (see, e.g., Supreme Court Decisions 86Nu492, Dec. 22, 1987; 86Nu49798, Nov. 10, 1987).

In short, it is the position of the party member that it is not necessary to realize the income accrued in the generation of the income, which is a taxation requirement of the income tax, even if it is not certain or confirmed to be not realized at least to a considerable level.

B. Meanwhile, the view of the party member that the income tax may be imposed on the income omitted from withholding is that the said income is established as a matter of course at any time after the taxable year, which is the time when the pertinent income accrues, was deemed to have been paid pursuant to the provisions of the tax law, as in the instant case, but at any time after the taxable year ends, there is no room to establish the original tax liability at all at the time of the end of the taxable year, even in the case where the pertinent income is deemed to have been paid.

According to the tax law, when the payer of the income tax pays the income subject to withholding to the other party who is the recipient, the tax office collects the income tax of the other party, and the tax office securing early realization of the taxing right even without waiting until the end of the pertinent taxable year, which is the time when the tax liability is established. On the other hand, it is the basic purpose of the position to affirm the imposition of global income tax, etc. on the income subject to withholding, as it is an institutional device that permits the establishment or realization of the tax liability to advance the establishment or realization of the tax liability.

따라서 소득세법이 원천징수대상인 소득의 현실지급시기와 다른 시기(또는 현실지급이 있기 전의 어느 시점)를 소득의 지급시기로 의제하여 원천징수의무가 발생하는 것으로 규정하고 있는 경우라 할지라도 소득 그 자체의 발생이 있고, 단지 그 지급시기의 확정만이 불명하거나 소득지급자의 사정으로 지체된 경우( 소득세법 제146조의2 , 제147조 , 제150조 등)에는 특별한 사정이 없는 한 그에 대한 종합소득세 등의 부과 여부를 가림에 있어 소득의 실지지급이 있은 경우와 달리 볼 것은 없다 고 할 것이다. 다만 이 때에도 소득의 발생이 있다고 보기 어려운 특별한 사정이 인정되면 지급의제규정을 적용할 수 없는 것으로 보게 된다 ( 당원 1988.9.27. 선고 87누407 판결 등 참조).

However, in the case where it is deemed that the corporation paid the income by the disposition of income generated in the return or rectification of the corporate tax, it is not based on the fact that the corporation paid the income, but it is deemed that the corporation paid the amount arising from the adjustment of the tax base, etc. in accordance with the relevant provisions of the Corporate Tax Act and the Enforcement Decree (specificly at the time of notice of change in the income amount) to the representative, etc. under such tax law. Therefore, the establishment of the tax liability for the income so deemed as above cannot be viewed as the case of other payments.

If the income is disposed of to the representative as the omission of the corporate income actually generated in the business year is included in the calculation of earnings or the amount of the amount generated by denying the inclusion of the processing cost in the calculation of earnings is unclear, it is probable that the amount would be actually attributed to the representative who is the person subject to the disposition of income in the business year (in this case, it may be attributed to the representative who is the person subject to the disposition of income; however, if there is no relation with the actual income attribution, for example, if the corporation denies the calculation of the act in fact and there is no relation with the calculation of the income in accordance with the tax law, it is assumed that the corporation actually denies the calculation of the act in question and the calculation of the income in accordance with the tax law, or if the corporation paid the bonds to the creditor as the bonds, but it is not recognized as losses under the tax law because the other party to the payment did not specify the creditor who is the corporation, the amount arising from the exclusion from the calculation of income in excess of the statutory limit even though it was paid as retirement allowance for the officer(the other party's income substitution).

At the end of the business year concerned, which is the time when the income is attributed, it cannot be deemed that the income that is equivalent to the amount of income subject to the income disposition, such as the representative, etc. who will be the person subject to the income disposition, has become final and conclusive, and the establishment of the income tax liability for the income whose maturity has not been determined can not be affirmed.

In the end, it is clear that the position that a withholding agent may impose income tax on a person with income which he/she has omitted from withholding can not immediately lead to the fact that he/she can impose income tax on a person with income when he/she is deemed to be paid by his/her income disposal rather than income at the time of payment.

C. The meaning of the Income Tax Act where a corporation's income is deemed to have been paid on the date when the change in the income amount was notified, and the relevant provisions of the Enforcement Decree thereof do not mean that the payment is deemed to have been made on the date when the notice of change in the income amount was received, regardless of whether the income amount was actually paid to the person to whom the income amount occurred (see Supreme Court Decision 90Nu7289 delivered on March 12, 191; Supreme Court Decision 86Nu324 delivered on October 28, 1986). It is nothing more than the fact that the corporation's income is deemed to have been paid on the date when the income amount was received on the date when the income amount was paid to the person to whom the income amount was paid, but it shall not be the basis for the expanded interpretation

There is no basis for recognizing the existence of the income subject to taxation before the disposition of income is made in the establishment of the tax claim obligation by the disposition of income, and there is no basis for recognizing the existence of the income subject to taxation, and there is no income tax liability due to the payment of income as well as the income tax liability due to the

D. As to the above interpretation, there may be doubts as to whether Article 53(3) of the Income Tax Act and Article 57(5)3 of the Enforcement Decree of the same Act concerning the time of attribution of income, such as Article 57(5)3 of the same Act, may not be justified. Therefore, we add that it is not so.

Without such a separate provision, it is not reasonable to conclude that income is paid to the representative, etc. at the time of notice of change in income amount, and there is no ground to conclude that income is paid to the representative, etc. at the time of notice of change in income amount. It is meaningful to stipulate the timing of income attribution in accordance with the above provisions. The income attribution is the year of the settlement of accounts (i.e., the relevant business year income is paid). Accordingly, the representative, etc. at the same business year becomes the party to the payment of income and is ultimately subject to income disposition.

5. If so, as determined by the court below, so long as the deceased non-party 1 who is deemed to have received the income at the time of the notice of change in the income amount of this case is already deceased, the liability to pay income tax cannot be established, and the plaintiff is not obligated to succeed as his heir, so the judgment below to the same purport is just and there is no error in the misapprehension of legal principles, and there is no reason to view the remaining arguments on the premise that it is opposed thereto.

Therefore, the defendant's 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 Yong-ju (Presiding Justice)