Cho Jae-2015-west-449 (2015.06)

Personal retirement benefits which are not subject to deferred taxation shall not be included in retirement income.

The individual retirement benefits that do not fall under the deferment of taxation are not considered as retirement income, and this disposition is justifiable.

2015Guhap824, detailed and revocation of disposition of global income tax and global income

CCC

O Head of the tax office and one other

December 3, 2015

January 28, 2016

1. Of the instant lawsuits, the part of the claim for revocation of the imposition of local income tax against Defendant BB director and against Defendant BB director shall be dismissed, respectively.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

With respect to the Plaintiff, KRW 5,582,590 of global income tax (including local income tax) imposed by Defendant BBA on February 13, 2013 (including local income tax) and the head of Defendant AAA tax office imposed on November 1, 2014 shall be revoked, respectively (the purport of the written complaint shall be stated as above).

1. Details of the disposition;

A. On April 27, 2007, the Plaintiff deposited KRW 172,785,539, which is a part of the amount received by making interim accounts of retirement benefits in an O life insurance company (hereinafter “O life insurance company”) into an individual retirement account (hereinafter “O retirement pension insurance without dividends”) under Article 25 of the Act on the Guarantee of Workers’ Retirement Benefits.

B. After that, on February 13, 2013, the Plaintiff received KRW 214,341,628, including operating profit 41,56,089 (hereinafter “the operating profit of this case”) from the above personal retirement account from O life insurance, in lump sum. O life insurance received KRW 5,817,850 as to the operating profit of this case (the resident tax of KRW 581,780, hereinafter “the interest income tax of this case”) and the local income tax of KRW 581,780 (the “the interest income tax of this case”) from Defendant BB.

C. On November 1, 2014, Defendant AA Head of the tax office notified the Plaintiff of KRW 5,075,090 of the global income tax for the year 2013 (hereinafter “instant global income detailed disposition”) and KRW 507,500 of the local income tax for global income for the year 2013.

D. On November 14, 2014, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition of global income tax, which was dismissed on July 6, 2015.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1, the whole pleadings

Purport

2. Whether the lawsuit against the defendant BB director is legitimate

A. Main Safety Defenses

Since the interest income tax of this case was withheld by O life insurance, and reported and paid to Defendant BB director, standing to sue is not recognized to the Plaintiff, who is the original taxpayer.

B. Determination

In withholding, unless the taxation authority directly imposes the source tax on the person liable for withholding taxes, the person liable for withholding taxes may not file an appeal against the taxation authority directly against the said person, as it is not affected by the existence or scope of his/her own source tax liability due to a notice of tax payment to the person liable for withholding taxes (see Supreme Court Decision 93Nu2234, Sept. 9, 1994). In addition, the O life insurance, a withholding agent, concerning the notice of the collection of interest income tax and local income tax in this case, may not directly file an appeal against the taxation authority.

Therefore, the plaintiff's lawsuit against the defendant BB director is unlawful (On the other hand, in the case of local income tax that is withheld with the interest income tax of this case, it is unlawful in that the defendant BB director is not allowed to be the defendant as seen below).

3. Whether a request for revocation of imposition of local income tax against Defendant AA director is legitimate

We examine ex officio the legitimacy of this part of the lawsuit.

According to Articles 87(1) and (3)2, and 93(1), (2), and (5) of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014), where income tax on interest income, dividend income, etc. is to be collected in a lump sum at the head office or principal office, income tax on such income shall be imposed by the local government having jurisdiction over the place where the income is paid. If income tax is to be imposed and notified in accordance with the Framework Act on National Taxes or the Income Tax Act, the head of the local government shall be deemed to have received a return or imposed a notice, and thus, the defendant in an appeal suit seeking the revocation of the portion of local income tax that the head of the local government imposed and notified on the plaintiff shall be the head of the

Therefore, the part of the instant lawsuit seeking revocation of the imposition of KRW 507,500 against Defendant AA Head of the competent tax office among the instant lawsuit is unlawful as it is against a person without standing to be the defendant.

4. Whether the disposition imposing global income tax of this case is lawful

A. The plaintiff's assertion

The products that the Plaintiff subscribed are not savings insurance under the Insurance Business Act, but according to the individual retirement account asset management policy that satisfies all the requirements prescribed by the Act on the Guarantee of Workers' Retirement Benefits. According to Article 42-2(1) of the Enforcement Decree of the Income Tax Act, a lump-sum payment, a mid-term withdrawal, which is paid from the individual retirement account, is taxable as retirement income, and there is no explicit provision excluding the above provision depending on whether the said provision is deferred or not. In addition, there is no ground to interpret that the operating profit of the individual retirement account that has not been deferred by expanding or delaying Article 42-2(5) of

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Article 22(1) of the former Income Tax Act (amended by Act No. 8541 of Jul. 23, 2007) provides that the amount of Class A employment income and Class B employment income generated during the relevant year, such as a lump-sum payment (Article 1(c) among retirement insurance money received by a person with Class A employment income, shall be determined by Presidential Decree as retirement income. Accordingly, Article 42-2(1)6(b) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008; hereinafter the same) provides that “Lump-sum payment received from an individual retirement account under the Guarantee of Workers’ Retirement Benefits Act” shall be included in the scope of retirement income. Article 22(5) of the same Act provides that where a worker transfers it to a defined contribution or individual retirement account within 60 days from the date of his retirement allowance, he shall not be deemed to have been actually paid to the employee’s retirement income account. This provision provides that the employee’s retirement allowance amount shall be paid in full discretion.

2) On April 27, 2007, only KRW 172,785,539, which is part of the retirement allowance amount received from O life insuranceO, was deposited into the individual retirement account of this case. As seen earlier, it is apparent that the operating profit of this case cannot be deemed as a lump sum payment received from the employer by the employee actually retired, and it cannot be deemed that the taxation was deferred pursuant to Article 42-2(5) of the former Enforcement Decree of the Income Tax Act, and thus, it cannot be deemed as included in the scope of retirement income. In full view of the above evidence and the purport of the argument in Gap evidence No. 6, the operating profit of this case is similar to the insurance profit of savings insurance under Article 16(1)9 of the Income Tax Act and Article 25(1) of the Enforcement Decree of the same Act as consideration for the use of money. Thus, it is reasonable to deem that the operating profit of this case is an interest income under Article 16(1)12 of the Income Tax Act.

Therefore, Defendant AA Head of the tax office’s imposition of global income tax of this case is lawful, and the Plaintiff’s assertion is without merit.

5. Conclusion

Therefore, the part of the claim for revocation of imposition of local income tax against Defendant BB director of the instant lawsuit and against Defendant AA director of the instant tax office is unlawful, and thus, the remainder of the claim by the Plaintiff is dismissed as it is without merit. It is so decided as per Disposition.