국외투자기구의 소득에 대한 조세조약의 적용 - 유한 파트너쉽인 사모투자펀드를 중심으로 -

Portfolio investors in securities frequently make and hold those investment by pooling their funds with other investors in a collective investment vehicle. Whether a collective investment vehicle can claim the benefits of tax treaties on its own behalf will largely depend on the question of whether a collective investment vehicle can be considered as a substantive owner of the income it receives. In many cases, because of the relationship of the investors and the investment vehicle or its managers, ownership of an interest in a collective investment vehicle is considered as the equivalent of ownership of the underlying assets, which will lead to denial of treaty benefits on its own behalf. As such judgment inevitably involves subjective determination to some extent, whether a collective investment vehicle is a substantive owner is not clear in many cases. There are several different forms collective investment vehicles take, but typically, private investment funds (“PEF”) are established in the form of limited partnership. As tax treatment of a limited partnership differs depending on the jurisdictions, a PEF in the form of limited partnership is faced with additional uncertainties in connection with application of tax treaties. This article discusses issues related to the application of tax treaties on the domestic source of income received by a foreign PEF taking the form of limited partnership, specifically within the context of a number of recent Korean supreme court judgments which classified a foreign limited partnership into the category of a foreign legal entity, subject to corporate tax under the Corporate Tax Act of Korea on its own behalf.