조세조약의 배당소득 과세에서 ‘낮은’ 제한세율을 적용받기 위한 요건인 주식 ‘소유’ 또는 ‘직접 소유’의 개념에 관하여 ― 우리나라의 해석론 ―

Tax treaties often limit taxation by a source jurisdiction on dividend income by imposing a certain maximum tax rate. Treaties frequently set two different rates for such a purpose, of which the lower one applies usually when (ⅰ) it is a inter-company dividend, and (ⅱ) the recipient-company “owns” or “directly owns” shares above a certain threshold level. Attempts have been made to justify the application of this lower rate in that this double-rate structure reduces economic double taxation, and stimulates direct investments rather than portfolio investments, neither of which is entirely persuasive. When it comes to the Korean perspective, its treaties with the U.S. and Japan require voting shares to be owned above certain threshold levels, while its treaty with France uses the term “direct [ownership]” for a similar purpose. Questions arise as to whether the term “ownership” or “direct ownership” can be equated with “in-substance ownership” or “beneficial ownership”, or viewed as encompassing “indirect ownership.” This article, starting from discussions on Article 3, Paragraph 2 of the OECD Model Convention, argues that the term “ownership” as referred to above means both “in-substance ownership” and “beneficial ownership” through interpretation of treaty “context” and relevant Korean domestic law. On the other hand, it is also argued that the term “direct ownership” should be construed as encompassing only “outright, direct ownership” as mentioned in the U.S. administrative rulings. This conclusion is hinged upon the idea that “direct” is a term that collides with the doctrine of “substance over form” of which the main function is to deem what is “indirect” as “direct,” and hence, when such a term is deliberately used in a treaty provision, application of the doctrine should be denied as an exception.