조세조약상 수익적 소유자 조항의 해석에 관한 연구: 의미 지평의 기원, 확대 그리고 제한

This article discusses how to interpret the meaning of “beneficial owner(BO)” which is problematic concept in tax treaties. It is a starting point to trace back to the original meaning of BO that is originated as the technical term in law of equity in England. BO means the person who is a beneficiary in trust relations, whereas a trustee is a formal owner of trust property. There was a need for the benefit of tax treaties, the object of which is prevention of double taxation, not to be given to a trust who is not treated as a tax payer of profits arising from trust property. BO was introduced into tax treaties in order to satisfy this need. BO, which was included as countermeasure at first, has expanded its meaning to anti-avoidance rule, as tax treaty shopping has been increasing in the realm of international trade. This tendency has been accelerated since the revision of Commentaries on the Articles of Model Tax Convention in 2003. It is fair to say that BO that was the expression of formal substance approach has gradually been transformed into the realization of economic substance approach. BO had an important meaning as anti-avoidance rule because the Supreme Court of Korea in the past was reluctant to view “substance over form principle” as having the meaning of economic substance approach. But the Court, starting from 2008Du8499, turned to the view that the person who is engaged in a multi-transaction involving a third party such as a conduit company can be taxed in light of the general principle of substance over form if profits from the transaction is economically attributable to that person, which results in less need for differentiation between the BO rule and the substance over form principle. However, practical necessity for the definition of BO is another matter with theoretical necessity of the definition. We cannot ignore a need to get to the universal meaning of BO in order to ensure the uniform application of tax treaties. OECD is preparing for another revision to deter OECD members from applying BO rule as general anti-avoidance rule. The revision is expect to establish BO rule as specific anti-avoidance rule. The new definition of BO suggested by OECD requires the negative requirement to be BO, which is the absence of “a contractual or legal obligation to pass on the payment received to another person.” Over the left, the person who cannot be BO is the person whose right to use and enjoy the payment received is constrained by such obligation. The main drawback of OECD's new definition is that it fails to explain a conduit company case which is the most representative case of tax treaties shopping. Being driven by a strong will to confine the meaning of BO to a fenced area, OECD's revising work ends up with obliterating part of vitality that BO rule has had.