「소득세법」상 거주자 개념에 관한 연구

According to South Korean’s Income Tax Act, the resident is determined by comprehensively considering the following：rather than someone’s permanent citizenship or nationality, their actual livelihood and a place of residence are more valued；in which country their major assets are；and where their family to be supported live. This taxation system uses abstract and unclear terms in judging the resident's address, sparking much argument over the criteria between the tax authorities and taxpayers. This study researched and analyzed a variety of materials including：the related books or the previous theseswhich are domestic or foreign；research reports；the court rulings including those of the Supreme Court’s；the judgments of the Tax Tribunal；the general rules of the income tax statute；the previous interpretations of the Ministry of Strategy and Finance or the National Tax Service；the newspaper articles；and the government press releases. Furthermore, this study examined and compared such various materials as；the advanced countries’ statutes about taxing residents including the interpretations thereof；tax treaties including OECD Model Tax Convention, ROK-U.S. Income Tax Convention and ROK-China Income Tax Convention. Survey result, it needs to be rationalized through the following improvement measures. First, the current resident taxation system is considered inconsistent with the principle of no taxation without law；so the Income Tax Act should specify the definition concept of an address and introduce the territorial principle only about tax havens so that if Korean nationals have an address or residence in a particular tax haven, they should be seen as residents with their address in South Korea so as to respond to tax evasions before or after incidents. In addition, taxation response measures shall be prepared to respond to non-nationality people including refugees and people with the loss of their nationality. These measures aim to respond to a growing number of defectors from North Korea, and the emergence of multiple-nationality people, refugees, and non-nationality people with the loss of their nationality. Second, by referring to the U.K.’s resident determination system, the resident’s address in relation to his or her livelihoods can be judged by additionally specifying abstract judgment factors based on the number of sojourn days and yet prioritizing the application thereof so as to boost the predictability of taxpayers and tax authorities. In this case, if the taxpayer proves that he or she is a non-resident due to deep foreign relationships, the legislation of U.S. and the U.K established such resident as a non-resident, allowing the court to judge the person’s taxation issues by only considering his or her domestic livelihood activities, and this legislation should be introduced to South Korean’ taxation law to improve the system. Third, to handle issues surrounding the vagueness of a domestic resident, the resident advance ruling system needs to be introduced. Through this system, taxpayers can ask the tax authorities whether or not they are a resident to know in advance whether they are a resident, thereby minimizing unnecessary disputes between taxpayers and tax authorities, and reducing tax administration costs. Fourth, as shown in the example of the King of Ship, etc., due to the difference in the resident recognition time (in terms of an address, a person is regarded as a resident from the time of address registration；in terms of residence, a person is regarded as a resident from 183 days after the residence is registered), the taxation year is different, making a big difference. So, the address judgment principle shall be based on whether a sojourn period of 183 days or longer is met. Also, relevant laws should be amended to make it clear that if certain objective factual factors (indices) of livelihood activities are met in line with the number of sojourn days, the person should be judged as a resident. In determining the time when a non-resident becomes a resident, the law provides that the time is determined as “183 days after the person registers his or her residence,” so it should be amended to the effect：“the taxation period to which the 183 days of domestic residence belongs” or “from the intial residence registration time.” Meanwhile, under the Enforcement Ordinance of Income Tax Act -Article 2- Paragraph 3 -Subparagraph 1-, the provision on occupation under Paragraph 2 mentions family, occupation and asset status altogether, and again specifies and mentions occupation；the provision is duplicated；Paragraph 4 considers an opposite circumstances, requiring that the Act-Enforcement Ordinance-Article 2-Paragraph 3-Subparagraph 1 should be deleted. Also, the provision-that if a person has registered his or her residence for 183 days during two taxation periods, it is regarded as the person having registered his residence for 183 or longer days-contradicts the parent law Income Tax Act which says that if a person has registered his or her domestic residence for 183 days, he or she becomes a resident, thereby breaching the principle of no taxation without law. Thus, as before, the requirement should be amended as one year or longer period during two taxation periods. Fifth, the taxation system for short-period foreign residents triggers unfavorable bias against domestic residents, contradicting fair taxation, and such foreigners evade even huge amounts of domestic withholding taxes. Given this reality, this system should in principle be abolished more because tax authorities intend to impose withholding taxes on domestic corporations which employ foreigners without the obligation of paying for services. If this said system is retained, it should be amended to reciprocally exempt taxes with Japan and China which have a similar taxation system for short-period foreign residents. Through this study can you find important policy implications for revising the relevant provisions of the Korean Income Tax Law related with resident taxation system.