Seocho 208west 3690 ( October 25, 2009)

Appropriateness of the assertion that honorary retirement allowances fall under retirement income

The retirement of the plaintiff is not made according to the head of the restructuring division, and there is no person other than the plaintiff, and the honorary retirement allowances paid during the retirement process is the amount similar to the retirement allowance payment rules specified in the rules of employment.

The contents of the decision shall be the same as attached.

1. The decision of rejection rendered by the Defendant on July 14, 2008 against the claim for correction of KRW 138,419,610, which the Plaintiff filed with the Defendant for the amount of wage and salary income for the year 2008, shall be revoked.

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

The same is as the order(the date of the disposition of the Director's office is the date of May 29, 2009).

1. Details of the disposition;

A. On June 1, 198, the Plaintiff joined the Seoul Branch of the AAA bank and was on early retirement on April 30, 2008 (hereinafter “instant retirement”). On April 30, 2008, before the retirement age (the retirement age is 60 years old, the Plaintiff was on December 11, 1952, and the retirement age is 60 years old). On April 1, 2007, after the interim settlement of the retirement pay, the Plaintiff received 30,246,119 won as retirement allowances for the period of service after April 1, 2007, other than receiving 30,24,102,00 won as retirement allowances for the period of service after April 1, 2007, the Plaintiff additionally received 504,102,00 won for the monthly average wage under the name of the honorary retirement allowances (the monthly average wage is 14,002,83 monthsx36 months (hereinafter “the instant payment”).

B. The Seoul Branch of AAA bank classified the instant payments as earned income and withheld global income tax, and reported and paid them to the Defendant on May 13, 2008.

C. On May 21, 2008, the Plaintiff requested the Defendant to rectify the difference between the tax amount calculated by deeming it as retirement income = 163,817,127 - 25,397,520 won) and the tax amount calculated by deeming it as retirement income (138,419,607 won = 163,817,127 - 25,397,520 won).

D. On July 14, 2008, the defendant rejected the plaintiff's request for correction on the ground that the payment of this case was made as a voluntary decision of the company without a certain payment standard, and is not paid for many and unspecified retirees, and it constitutes not retirement allowances but wage and salary income (hereinafter "disposition of this case").

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on October 8, 2008, but was dismissed on May 25, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Gap evidence No. 8, 9, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Seoul Branch of AAA bank recommended the Plaintiff to retire early on the condition that it additionally pays early retirement compensation within the scope of the rules of employment for an unspecified number of workers within the scope of restructuring due to aggravation of the market situation in Korea. The Plaintiff’s consent to receive the instant payment, which does not constitute earned income as it is no relation to the Plaintiff’s provision of labor. Although the Plaintiff’s concession of certain amount, the instant payment constitutes retirement income as the money paid pursuant to the retirement benefit payment provision for an unspecified number of workers.

Therefore, the instant disposition is unlawful on a different premise.

B. Relevant provisions

The provisions of the attached Table shall be as specified in the attached Table.

C. Determination

1) Article 38(1)13 of the Enforcement Decree of the Income Tax Act provides that "retirement allowance, retirement bonus, and other salaries similar thereto, which are received due to retirement, which do not belong to retirement income, shall be earned income." Article 42-2(1)4 of the Enforcement Decree of the Income Tax Act provides that "retirement allowance, retirement allowance, retirement allowance, and other salaries similar thereto, which are paid under the rules on payment of retirement benefits, employment rules, or labor-management agreement, which apply to many and unspecified retirement workers, are retirement income." Thus, in cases where a company receives wages from its affiliated companies due to retirement, whether the wages are retirement income or labor income shall be determined on the basis of whether the wages are paid according to the standards uniformly applicable to many unspecified

2) According to the evidence No. 6, the contents of the retirement allowance under the rules of employment (Evidence No. 7) at the Seoul Branch of AA bank are as follows.

3) The above provision is a provision on the payment of retirement allowances under the rules of employment at the Seoul Branch of AAAA bank, and it is a standard that uniformly applies to an unspecified number of retirement workers. Thus, although retirement allowances paid under the above provision are only one retirement worker at the time of the payment, it shall constitute retirement income under the Income Tax Act. However, rather than retirement allowances paid under the above provision, it shall be deemed that retirement allowances, retirement rewards, and other money of a similar nature, which is paid voluntarily by an agreement between the retired employee and the bank, constitute

In this case, the issue is whether the instant payment falls under the retirement allowance under the provisions of B.B of the above provision, and the requirements for B.B are examined. ① Although B. refers to “the reduction of the number of employees due to the transfer of the whole or any other unavoidable reasons”, it appears to the purport of protecting the employees from the voluntary reduction of the employer by limiting the grounds for reduction of the employee’s retirement allowance. In such a case, the payment of additional benefits to the employee is deemed to have the nature of compensation or consolation benefits for the retired employee under the circumstances on the part of the employer, rather than due to the reasons attributable to the employee, and the purport of facilitating early retirement under the above company’s conditions is also included in B.B. The reasons for deeming the payment of early retirement benefits to the employee to have been made without the employer’s consent to the retirement allowance in accordance with the provision of B.B. If there is no reasonable ground to view it as the employee’s voluntary retirement allowance in light of the employer’s intent, the reasons for deeming it to have been made without the employer’s consent to the retirement allowance.

4) We examine whether the instant retirement allowance is a retirement allowance under the Rules of Employment B.B.

Gap evidence Nos. 5 and 10, Gap evidence 10, Eul evidence 11-2, and the fact-finding with the Seoul Branch of New York Bank as a whole, under the following circumstances, i.e., although the plaintiff retired, it appears that the plaintiff's business performance was led by the Seoul Branch of New York Mel Bank as a result of the deterioration of the domestic business environment, and as such, it appears that the plaintiff's retirement allowance was not strong but is based on an agreement. However, such agreement is not consistent with the rules of employment. <3, the amount of the payment of the plaintiff's retirement allowance is not consistent with the standard of payment under the rules of employment. However, it is difficult for the Seoul Branch of New York Mel Bank and the plaintiff to pay the plaintiff's average wage for 38 months, which is the amount calculated under the rules of employment B.B., calculated by deducting the amount of the plaintiff's retirement allowance under the rules of employment.

5) Therefore, the instant disposition rejecting the Plaintiff’s claim for correction on the premise that the instant payment was not retirement income but wage and salary income is unlawful.

3. Conclusion

The plaintiff's claim shall be accepted with due reason.