The method of returning unjust gains where withholding tax is paid, even if it is non-taxable income;

If payment is made even if it is not subject to withholding, the State constitutes unjust enrichment and the claim for repayment is attributed to the withholding agent, and the original taxpayer can claim the amount equivalent to the claim for repayment against the withholding agent as unjust enrichment.

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 defendant shall pay to the plaintiff 890,168 won with 20% interest per annum from the day after the delivery date of a copy of the complaint of this case to the day of complete payment.

1. Determination

The plaintiff was employed by the non-party ○○ Public Service Co., Ltd., the non-party 1, the non-party 2, the non-party 2, the non-party 2, and the non-party 2. The plaintiff asserted that the above company had a duty to return the plaintiff's unjust enrichment to the defendant, since the above company collected 890,1658 won, even though the plaintiff's overtime allowance, night work allowance,

On the other hand, if a withholding agent collects and pays the tax amount on any income which is not subject to withholding from a withholding agent or in excess of the tax amount to be collected, the State shall be deemed to be unjust enrichment held by the withholding agent without any legal ground. However, since the right to claim the refund therefrom belongs to the withholding agent who is not the withholding agent. Thus, the withholding agent can only claim the amount equivalent to the above right to claim the refund against the withholding agent as unjust enrichment (see, e.g., Supreme Court Decisions 2001Du8780, Nov. 8, 2002; 2002Da68294, Mar. 14, 2003).

Therefore, on the premise that the Defendant’s direct source taxpayer is obligated to return the tax withheld and paid for the non-taxable income to the Plaintiff as unjust enrichment, the previous Plaintiff’s assertion is without merit as to whether the aforementioned overtime allowance, night work allowance, and holiday work allowance are non-taxable income.

2. Conclusion

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