稅法上 屬人主義와 屬地主義의 대립

Most nations exercise in-personam jurisdiction for residents on their world-wide income, as well as territorial jurisdiction for non-residents on their domestic source income. In reality, however, territorial jurisdiction functions as the virtually governing norm because foreign income can avoid in-personam jurisdiction simply by taking advantage of the legal formality of incorporating a subsidiary in a foreign country. The paper analyzes the logical and historical reason underlying this structure. Where does the disparity between the norm of worldwide taxation and the reality of territorial taxation originate from? The paper proffers a hypothesis that the personal v. territorial tax controversy can be reduced to a conflict between the populist notion of equity and the class interest of capital owners. First, the paper demonstrates that worldwide taxation is superior to territorial taxation in terms of equity as well as efficiency. In particular, it disproves the notion of capital ownership neutrality recently advanced by Desai and Hines, which supports territorial principle. The paper then attempts at analyzing why the territorial principle trumps the worldwide taxation in reality. It shows that the conceptual difficulty inherent in the latter is not insurmountable, and then suggests the class interest hypothesis by reference to the history of tax rules.