국제조세 주요 판례의 조명과 과제

This paper is an overview of the significance and unresolved issues that can be drawn from contemporary doctrines in the area of international taxation. It is based on a selection of five leading cases, and the results are summarized below. The Magilink case specifically defined the meaning of ‘the Place of Effective Management’(POEM) under the corporate income tax act and identified the determining factors of POEM. Notably, the Magilink case’s doctrine requires a certain threshold, as regards to time and place, in deciding whether POEM exists in Korea. The courts should solve what threshold of time and place is needed on a case by case basis. If difficulties arise from applying POEM to individual cases in the absence of specific criterion, then we need to seriously consider legislating alternatives like the conversion rule in the U.S. and Japan. First, the TMW case affirms the applicability of tax treaties where a “foreign fiscally transparent entity” (FFTE) is established in a country that has entered into a tax treaty with Korea. Then the TMW case also specifies the range of the tax treaty’s applicability for FFTE investors who reside in the same foreign country where the FFTE is established. In this matter, the current issue to be solved is to define the meaning of “direct holding”, which is one of the requirements of the benefits of tax treaties for dividends. Additionally, Korean legislators should address the problem that arises when another of the FFET’s investors is from a different country whose tax treaty with Korea has concluded. Such investors are not subject to that tax treaty because their resident country is not the same as the FTTE’s established country. There is no doubt that the Semiconductor case has significance on whether the newly enacted provision that enables Korean tax authorities to levy taxes on royalties paid to the U.S. patentee, in contrast with the previous position of the Korean supreme court, is effectively enforced, in spite of the restrictions of the Korea-U.S tax treaty. The Semiconductor case maintained that the new provision is also unable to give taxing rights to Korean tax authorities due to prevention of this tax treaty. In response to this blockage, Korean legislators have no choice but to devise alternative domestic provisions that override the Korea-U.S. tax treaty. The distinctive importance of the Bloomberg case was that it detailed the requirements of ‘Permanent Establishment’ under the tax treaty. It can be inferred from this doctrine that the requirements are still valid for the e-commerce industry. In the meantime, the issue, whether combined various preliminary and auxiliary activities can constitute essential and vital activities, remains to be interpreted by the courts. The UIP case presented a new doctrine on the burden of proof with regard to the range of an arm’s length price. Korea has two separate tax systems that regulate the fairness of transaction prices made between related parties. We can no longer deny the difficult task of whether and how those two systems should be changed into one unified system.