비거주자인 원천납세의무자의 경정청구와 입증책임 ―실무상 문제점 및 개선방안―

Due to the amendment of the Framework Act on National Taxes in the end of 2006, filing claims of reassessment is allowed for non-resident taxpayers. Further, as the filing of claims of reassessment regarding the application of tax exemption or limited tax rates under tax treaties is introduced, the remedies available to non-resident taxpayers have become confusingly overlapped. Even under the traditional legal dogma regarding withholding relationships, taxpayers are able to ⅰ) claim the unpaid portion of agreed amounts against the withholding agent through civil litigation as well as, ⅱ) claim restitution of unjust enrichment based on the withholding agent’s right to claim a refund. On the other hand, if there is a dispute as to the classification of income or the application of a tax rate, there is a way to determine the scope of withholding taxes by applying for the Mutual Agreement Procedure based on a tax treaty and agreeing to the classification of income between the tax authorities. However, these two methods all have an inefficient aspect, and as a result, a new way was opened in 2006 whereby non-resident taxpayers can directly apply for a refund. However, in the domestic withholding structure not recognizing detailed legal relationships between withholding taxpayers and the tax authority with respect to withholding, allowing the filing of claims of reassessment under the Framework Act on National Taxes to even non-resident taxpayers appears to be off balance and excessive. If we look into the legislation of other countries, a majority of countries have the structure in which claims of reassessment are narrowly allowed only in relation to application of a tax treaty, rather than allowing general claims of reassessment to non-residents. Since such claim of reassessment process is newly introduced under the Corporate Tax Act and the Income Tax Act, it is questionable whether maintaining the system allowing the claim of reassessment process to non-residents under the Framework Act on National Taxes is reasonable. Even if the overlapping of the refund process is allowed by maintaining current system, it will be right to, at least, consistently place the basic burden of proof on the non-resident filing the claim of reassessment from the claim of assessment filing stage until the appeal and litigation stage. The reason is because it will be in line with the principle for the allocation of the burden of proof as well as equity and common sense for non-residents applying to foreign tax authorities for a refund of withheld taxes (over whom the Korean tax authorities do not have jurisdiction, even though those non-residents have the information regarding the transactions subject to taxation) to bear the burden of proof for themselves regarding their own claim of a refund of withholding tax.