원천징수 법률관계에 대한 주요 쟁점 연구 ― 최근 대법원 판례 동향을 중심으로 ―

Abstract

This study is to analyze the legal issues regarding withholding tax with Korean Supreme court cases and seek interpretation theories. First, I looked into the 2015Du52050 decision to study the legal relationship between tax authority and withholding taxpayer in the case of paid withholding tax. The decision stated that there is no legal relationship between the two above in principle, except that there is a tax code allowing tax authority to impose tax on withholding taxpayer. Meanwhile imposing tax on withholding taxpayer was allowed in the 2000Du10649 decision. I think the reason was to allow an exceptional way of settling dispute between 1)tax authority and withholding obligator, 2)withholding obligator and withholding taxpayer at the same time in light of an efficient resolution of relevant dispute. The tax code allowing imposing tax on withholding taxpayer was introduced in 2006. I think this tax code is a confirmatory regulation, not to limit the scope of application. So even though the case in dispute is out of the scope, tax authority should be able to impose tax on withholding taxpayer. Next, I looked into the 2014Du45246 decision and the 2020Da256187 decision to study whether or not withholding obligator has a right to refund tax withheld in the case of prepaid withholding tax The former decision dealt with the case that withholding obligator was not able to collect withholding tax but paid tax to tax authority. It stated that withholding obligator and withholding taxpayer have a right to refund tax withheld and the additional tax payment respectively. The tax obligation in this case is not likely to be settled perfectly that the legal relationship between tax authority and withholding obligator, withholding obligator and withholding taxpayer still exist. In this respect, I believe the former decision that withholding obligator still has a right to refund the tax withheld quite reasonable. The latter decision dealt with the case that withholding obligator collected and paid withholding tax. It stated that withholding obligator has a right to refund tax withheld in line with the former decision. But in this case the tax obligation is settled perfectly unlike the former decision, and the legal relationship above is not likely to longer exists. On top of that, if we allow withholding obligator to claim a tax refund, it will make it more difficult for withholding taxpayer to claim a tax refund, which is undesirable in light of an efficient resolution of relevant dispute and protecting taxpayers’ right. So I think that the right to refund tax withheld should not belong to withholding obligator.