비거주자의 주식양도소득에 대한 원천징수의 한계

Concerning so-called ‘Newbridge Capital case’ and similar case(hereinafter ‘subject case’), the gist of this paper can be summarized into the following two categories. First, when a withholding agent fulfills its obligation to withhold tax on capital gains from the disposition of Korean shares, it may violate the doctrine of proportionality case by case imposing duty on withholding agent to determine the beneficial owner of such capital gains. Second, to avoid unconstitutionality, it is reasonable to construe that the withholding agent is obligated to identify the beneficial owner only if it knew or should have known such beneficial owner. Then, is it legal or illegal for Korean tax authorities to impose on withholding agent the taxes which the beneficial owner is subject to? According to this paper, the legitimacy of tax on the withholding agent results in finding of facts whether the withholding agent knew or should have known the beneficial owner. In other words, it is legal to levy tax on the withholding agent when the withholding agent knew or should have known the beneficial owner. On the contrary, it is illegal imposing duty to identify the beneficial owner on the withholding agent if the withholding agent has no information on the beneficial owner. In subject case, it is possible that the withholding agent knew or should have known the conduit company is not the beneficial owner. However, it is against business practices or empirical rule to assume that the withholding agent knew or should have known hundreds of foreign investors in certain cases. Therefore, the latter is more appropriate.