조세조약 적용에 있어서 수익적 소유자 판단 관련 제 문제―수익적 소유자에 대한 최근 법원의 판단 경향을 중심으로―

In recent years, there are serious dispute between tax authorities and taxpayers over determining a beneficial owner of income for tax treaty purposes. A beneficial ownership is the most important issue to apply the tax treaty, but since the current Korean tax laws do not provide a clear guideline, taxpayers as well as the tax authorities are having difficulties in applying the tax treaty. OECD Model Tax Treaty also does not define the beneficial owner of income clearly, but instead it states that it can be determined by the agreement or the tax treaty between countries. With absence of clear guideline, it would be necessary to analyze the recent court decisions related to the issue of beneficial ownership. These decisions demonstrate that the beneficial ownership is determined considering all the facts and circumstances comprehensively, such as the inception date of the foreign entity including persons, corporation, any kind of group, organization etc. (hereinafter “organization”), number of people belongs to the organization, existence of person for a decision making and so on. In addition, based on the court practices, it is first determine the type of foreign organization (i.e., a beneficial owner) in accordance with the Korean tax laws and classify income at issue as corporate income or individual (personal) income. However, due to lack of guidance, it appears that the taxpayers can only rely on the court decisions at the current stage and thus, it is highly required to administer taxes transparently and consistently and enhance the predictability of taxation for taxpayers. Most importantly and urgently, it should set up a clear guideline on determining the beneficial ownership of income. As a result, we would like to list up the important facts to determine the beneficial ownership of income based on the performance (substance) and the type of the foreign organization. Based on the performance, first it should consider (ⅰ) the incorporation date and the liquidation date of the foreign organization, (ⅱ) investment ratio of the foreign organization in a domestic entity, (ⅲ) number of person(s) of organization and substance of person(s) for decision making, and then decide the substantial foreign organization made investment in a domestic entity considering any chance of intention of tax avoidance. Followed by determining the beneficial ownership on performance basis, it should determine the type of the foreign organization. If the foreign organization is classified as a corporation, it is subject to corporate income tax. In other cases, member(s) of the foreign organization would be subject to individual income tax. In addition, under the current tax laws, the taxpayer bears burden of proving that the beneficial owner of income all the cases. But, if there is no clear and specific evidence for determining the beneficial owner of income, it would be the burden on the taxpayers to comply with their obligation. It would be recommended the burden reduction for the taxpayers by specifying the regulation, for example, the taxpayers have obligation of demonstrating the beneficial owner of income only when there is clear and specific evidence available. Moreover, Individual Income Tax Laws (“ITL”) state that the foreign organization should be viewed as a non-resident and taxed under the ITL in case when a taxpayer does not submit the evidential documents to determine the beneficial owner of income. Thus, the current court decisions should be consistent with the ITL.