법인세법상 “실질적 관리장소” 개념의 개정방안에 대한 소고

This study has examined the issues encountered in interpreting and applying the concept of place of effective management and suggested the following improvements based on the analysis of the standards necessary for determining the "place of effective management" prescribed in the OECD Model Tax Convention and as shown in the interpretations of the concept of major countries and based on the theoretical consideration relating to the concept which is one of the standards used for determining whether a certain company is a domestic company or a foreign company. First, it would be desirable to concretely prescribe the standards of judgment at least by the Enforcements Decree of the Corporate Income Tax Law in connection with the concept “place of effective management” prescribed in Article 1(1) and 1(2) of the Corporate Income Tax Law, considering factors such as high-level decision makers, the place of the decision developed, the business carried on, and tax avoidance, etc. However, all relevant facts and circumstances must be examined to determine whether a place of effective management does exist. Thus ,there is a need to provide practical guidelines that enhance predictability of application of tax law for taxpayers. In this regard, OECD Model Tax Convention with its Commentary and examples of legislation with case laws of major countries would be informative guides. Second, it is required to prescribe cases or examples that treat domestic companies or foreign companies as a separate provision. As there is a separate provision that shows circumstances of residents and non-residents under the Individual Income Tax Law, this is to forestall controversies over the determination on the residency of a corporation based on the place of effective management. Special Purpose Company (SPC) with appropriate business purposes and fund manager of foreign investment funds can be the cases for this. Third, apart from the improvements of domestic tax laws, it would be desirable to consider alternatives such as the application of hierarchical approach, the replacement of place of effective management by mutual agreement, or the implementation of a new concept such as “real center of management”.