귀속불명소득의 대표자 인정상여와 원천징수의무자의 구상권의 범위 ―대법원 2008.9.18 선고, 2006다49789 전원합의체판결 평석―

Under Article 67 of the Corporate Income Tax Act(“CITA”) and Subparagraph 1-1 of Article 106 of the Enforcement Decree of the CITA, in determining or correcting the taxable income, the amount included in gross income shall be treated as bonuses, dividends, other outflows from the company, retained earnings, etc. according to the person to whom they accrue. If it is unclear as to how the accrual of an outflow of income included in gross income is to be classified, it shall be deemed as accruing to the representative, and shall be treated as bonuses to the representative. However, where the company receives a change of income notice issued pursuant to a decision to treat the portion of income as deemed bonuses accrued to the representative, withholds tax as a withholding agent, and makes an indemnity claim against the representative, it is unclear whether the representative, who is the end taxpayer of the income, can reject the indemnity claim on grounds that no income is actually accruing to him. In this connection, the Supreme Court has previously issued two conflicting decisions：ⅰ) the company can only claim indemnity for the portion of the income outflow which is actually accrued to the representative and ⅱ) the company can claim indemnity for the entire portion of the income outflow deemed as bonuses of the representative regardless of whether the income is actually accrued to the representative. Under the Income Tax Act(“ITA”), the amount deemed as bonuses under the CITA is classified as Class A(“KAP JONG”) earned income. Hence, the representative is liable to pay income tax for the entire amount as a taxpayer regardless of whether income treated as bonuses to the representative is actually accrued to him. However, where the company pays withholding tax for the deemed bonuses as a withholding agent, the representative is relieved a withhoincome tax payless obligation. Consequesslageso longagesohe pa visions of the curress ITA conceronuseincome deemed as bonuses are effective, even ifesuch bonuses are not actually accrued to the representative, he receives unjust enrichless to the extess that he is relieved a withhoincome tax obligation. Thutatit is pa per to view the representative as having an obligation to return such unjust enrichment. The subject case is highly significant in that the Supreme Court interpreted and synthesized the conflicting precedent decisions to reach a unified conclusion within the framework of the current law. Nevertheless, the current provision stipulating that income outflow whose accrual is unclear is deemed as accrual to the representative should be reviewed in a legislative context.