원천징수세의 회생절차상 지위 ―특수관계 소멸로 인한 가지급금의 소득처분 및 원천징수를 중심으로―

This study examines the Supreme Court case currently pending under Case No. 2023Du31102, which addresses the tax implications arising when, despite the termination of a special relationship through the dismissal of a representative director or the gratuitous cancellation of shares under a rehabilitation plan, a corporation fails to recover non-business advances from a related party. In such circumstances, if the tax authority includes the unrecovered amount in gross income pursuant to Article 11(9-2)(a) of the former Corporate Tax Act after the completion of the rehabilitation procedures, this study argues that the inclusion should occur at the time when all special relationships between the corporation and the debtor of the non-business advances are extinguished. Moreover, when disposing of the included income, the type of income should be determined according to the status of the debtor immediately before the termination of the special relationship. Further, by modifying certain facts of the above case, this paper explores the status of withholding tax in rehabilitation procedures, assuming a scenario in which a corporation undergoing rehabilitation receives a notice of changes of income. First, under Article 55(1)(7) of the Debtor Rehabilitation and Bankruptcy Act (DRBA), profit distributions are prohibited without resorting to rehabilitation procedures during the period of time running from when the rehabilitation procedures commence to the time they end. However, since disposing of the included income as dividends is not related to profit distributions, the tax authority may dispose of the included income of a corporation undergoing rehabilitation as dividends. Although, following the Supreme Court Decision 92Nu4987 rendered on July 28, 1992, tax practice has consistently refrained from disposing of the included income of a corporation undergoing rehabilitation as dividends, this practice should be rectified.” Second, when an outflow of corporate assets occurs after the commencement of rehabilitation procedures and a notice of changes of income is issued thereafter, the resulting withholding tax constitutes priority claims under Article 179(1)(5) of the DRBA. Third, if the outflow occurred before commencement but the notice is issued afterward, the withholding tax obligation arises post-commencement and thus qualifies as other claims after commencement, not as rehabilitation claims or priority claims. The Supreme Court precedent that has taken a contrary view by treating it as priority claims should be revised. Fourth, because Article 179(1)(9) of the DRBA applies only where the tax liability has arisen before commencement, this study proposes a legislative amendment to clarify this prerequisite by explicitly inserting the phrase “where the tax liability has arisen before the commencement of rehabilitation.”