가집행선고부 승소판결에 따른 가지급물과 소득의 실현 ―권리확정주의와 대법원 2019.5.16. 선고 2015다35270 판결―

The Korean tax law adopts the doctrine of settlement of rights (“Doctrine”) that is based on the realization principle. Under the Doctrine, income is taken into account in the taxable year during which the taxpayer’s right to it and its amount is fixed, even if the taxpayer does not receive such income. A recent Supreme Court decision dealt with a case where an obligee had received interest for arrears (“Income”) from an obligor based on a court ruling of provisional execution before the judgment on the merits was finalized. The obligor withheld income tax from the Income and then paid the remainder to the obligor. The key issue of this case is whether the Income was realized and should be withheld when the obligor paid it to the obligee. The Seoul High Court rendered a decision in favor of the obligee accepting the obligee’s argument that the Income should be taken into account to the taxable year when the judgment on the merits was finalized. However, the Supreme Court of Korea reversed the Seoul High Court’s ruling upholding the obligor’s assertion that the Income was realized and subject to withholding at the moment of the obligor’s payment. This article analyzes why the Supreme Court decision is right from the standpoints of the Doctrine, several Supreme Court’s precedents and other countries’ court cases.