한·미 조세조약상 배당소득의 제한세율요건에 관한 고찰 ― 소유(Own)의 개념 및 적용을 중심으로 ―

Tax treaties as well as the ROK-US Tax treaty are usually structured to distinguish between inter-company dividends and other dividends, which provide a reduced withholding tax rate on the inter-company dividends. Recently, the Supreme Court has rendered decisions that in the cases where the nominal recipient of income differs from the beneficial owner of income, the person who has, in fact, received income with the capacity to substantively control, manage and dispose of income should be the taxpayer with regard to the application of tax treaty. After that, the phrase requiring the minimum shares to be ge ed’ by the beneficial owner to apply the reduced withholding tax rate on the inter-company dividends gives rise to the question whether the shares indirectly owned should be contributed to the required minimum percentage of shares. In connection with the issue, the Supreme Court decision (2013Du659 rendered on May 24, 2013) decided that subparagraph (a) of Article 10(2) of the ROK-Japan Tax Treaty merely stipulates that the beneficial owner of the dividends should ‘own’ shares issued by the dividend paying company to be entitled to the reduced withholding tax rate, and thus, the term ‘own’ cannot be interpreted as narrowly meaning ‘direct ownership’ only. Based on the above Supreme Court case involving the ROK-Japan Tax treaty, on appeal the Tax Tribunal held for the taxpayer in an en banc decision that the lower dividend tax rate under the ROK-US Tax treaty applies. Therefore, the issue now seems fairly settled under the limited number of tax treaties that do not specify direct ownership of shares for the reduced withholding tax rate. However, given that tax treaties such as the ROK-France Tax treaty etc. require that the beneficial owner ‘directly own’ the shares, the question remains how the courts will address the issue involving such tax treaties and actually the lower courts have different opinions about the issue. In my opinion, the intent of the ‘direct ownership’ requirement is not seems to prevent the taxpayer from obtaining the benefit of the reduced withholding rate if the taxpayer owns the shares through a disregarded entity for tax purpose. Accordingly, where an indirect shareholder is taxed on dividends paid on the basis that it is the beneficial owner of the income, then for purposes of applying the applicable tax treaty it should be treated to directly own the shares in respect of which the dividend was paid. And it is consistent with the purpose of the reduced withholding tax rate on the inter-company dividends such as preferential treatment for direct investments and mitigating economic double taxation of dividends among group of companies.