스타타워빌딩 매각거래를 통한 론스타펀드Ⅲ의 세무계획의 분석

For the purpose of treaty shopping, Lone Star Fund Ⅲ made Star Holdings, a paper company incorporated in Belgium, buy and sell the shares of Star Tower company, instead of Star Tower building itself, and consequently, shifted taxable incomes to favorable tax jurisdiction and converted the types of taxable incomes. From the contractural perspective, tax planning of Lone Star Fund Ⅲ deems to be successful in that it could save overall tax burdens up to more that 80 billion Korean Won without levying implicit taxes. However, because such tax planning creates various and huge non-tax costs such as agency cost, tax investigation cost and opportunity cost, it proves to hardly be the “effective tax planning”. In view of tax laws, application of domestic tax laws to prevent aggressive tax planning is not treated as invalidating tax treaty in the overlapped area of them. Furthermore, with use of the “equality of tax burden principle” in the constitution and the “substance over form principle” in separate tax laws, aggressive tax planning could be effectively regulated even without any specific tax provisions for such purpose. As a result, tax imposition on Lone Star Fund Ⅲ is expected to be proved legal in the Supreme Court judgement. However, it should be considered that such tax imposition could lower returns of inbound foreign investment funds and increase tax appliance costs and the possibility of double taxation and treaty overriding, and consequently discourage economic growth. The probability that the Supreme Court maintains the lower court’s decision by imposing corporate income tax instead of canceling individual income tax makes Lone Star Fund Ⅲ bear transaction risk, which also supports that its tax planning proves to be substantially far from being effective. Alternative tax planning of Lone Star Fund Ⅲ could be either (i) adjusting investment objects to escape regulation on real estates or (ii) adding “reversibility option” into the contract, whereas the tax authority could take advantage of (i) the “permanent establishment” theory or (ii) the “piercing corporate veil” theory to make the tax imposition more logical.