개인 거주자 판단기준에 관한 소고

The purpose of this study is to seek for the appropriate residence criteria for individuals de lege lata as well as de lege ferenda. For that purpose this paper reviews the statutory requirements of ‘resident’ under the Korean Income Tax Act, and then the tie-breaker rule under the bilateral tax treaties mainly paying attention to the legislative counter-measures and court cases in the U.S., U.K., and Canada in a fashion of comparative law. The statutory requirements for residence under the Korean Income Tax Act has attracted criticism by reason of the unpredictability arising from the abstractive meaning of domicile(juso) which is the primary criteria for residence and is deemed to have the same meaning as in the general(civil) law regime. In addition it is also pointed out that 1 year or more of residence(geoso), the other statutory criteria for residence, is too long in comparison with those of the other jurisdictions in which the length of presence for the residence is at best 180 days. Such unnecessary long period of presence results in the self- restriction of the taxing power, an essential element of national sovereignty. To overcome such drawbacks, the legislative and jurisprudential effort toward emphasizing on the objective factor for residency such as the days of presence would be desirable just as the trends of most other jurisdictions. In the application of the tie-breaker rule under the tax treaty, it's essential to follow the international taxation meaning of each criterion rather than the domestic law meaning. For that purpose, it would be also imperative to under- stand the meaning of each criterion of the tie-breaker rule in the context of the international taxation along with paying attention to the OECD commentaries on its Model Convention, the theoretical literatures by scholars and court cases in the other jurisdictions in the international taxation area. In the light of the recent trend in such international taxation regime it's quite obvious to emphasize on the habitual abode largely based on the objective presence test instead of the permanent home or centre of vital interest(i.e. CVI) mainly based on the subjectivity. However recent Korean decisions both in lower courts and administrative panel look inconsistent with such international trend.