한ㆍ미 조세조약 제12조 배당소득 제한세율 적용범위의 개선방안에 대한 연구 - 모자회사간 지분 ‘소유’ 범위를 중심으로 -

Convention between the Republic of Korea and the United States of America for the avoidance of double taxation of income and the prevention of fiscal evasion and the encouragement of international trade and investment(hereinafter 'the Convention') was concluded in 1979. It has played an important role in foreign investment. Although the global economy has changed severly for 30 years more over, however, the convention has not revised yet once. Recently Supreme Court (Supreme Court 24/05/2013 2012du24573 Decision) ruled the important decision. This decision was about the issue of whether the parent company may be taxed at a lower tax rate limit, when the company owned indirectly by the parent company pays a dividend in the Korea-Japan Tax Treaty. The Court affirmatives. The Convention states that the rate of tax imposed by one of the Contracting States on dividends derived from sources within that Contracting State by a resident of the other Contracting State shall not exceed 10 percent of the gross amount of the dividend if at least 10 percent of the outstanding shares of the voting stock of the paying corporation was owned by the recipient corporation. The concept of "ownership" is very important and critical problem. Korean administrative and U.S. Treasury decided that “ownership” generally meant direct rather than indirect ownership, even if the treaty does not expressly so provide. In general, shares held by an affiliate of the shareholder cannot be counted towards this requirement. In this paper, we first express provisions relating to the provision, the United States and the OECD model tax treaty cases interpreting the commentary and analysis, including analysis wording and a teleological interpretation. Unlike the Supreme conclusion, it is reasonable that “ownership” generally meant direct rather than indirect ownership. Moreover in this paper, we propose an article that should be revised. The methods are three, the first one is direct ownership, the second is direct or indirect ownership, and the last one is different ownership according to the residents of contracting states. It depends on the policy between international tax avoidance and the facilitate international investment.