사모펀드와 고정사업장 과세 문제―대법원 2017.10.12. 선고 2014두3044, 3051(병합) 판결을 중심으로―

In the aftermath of the 1997 foreign exchange crisis, a number of international tax disputes arose with regard to foreign private equity funds in the course of realizing investment returns on their involvements in domestic corporate restructurings. Lone Star Funds, being a party in a series of high-profile tax disputes dealt with at the Supreme Court, has been at the center of this international tax avoidance controversy. Among the Lone Star tax cases, this paper reviews the Permanent Establishment(PE) taxation by the National Tax Service on the profits of Lone Star Fund Ⅳ derived from its investment in Korea Exchange Bank and others. In this case, the Supreme Court held that there was no PE or deemed PE with respect to the activities of domestic affiliates of the Lone Star Fund Ⅳ and some of Lone Star’s partners in Korea. When it comes to the PE issue of private equity funds, in theory one may not rule out the possibility of the constitution of a PE. Relying on the existing case law of focusing on the essential and significant nature of the activity of the enterprise, the Supreme Court in this case found that the major activities such as gathering of investors, decision on investment, alienation of the assets and recuperation of the investment return have taken place in the United States while the activities of domestic affiliates like LSAK/HAK and some partners of the private equity firm have been at best of a preparatory and auxiliary nature, so that no PE or deemed PE have existed. In the author’s view, the decision of the Supreme Court is a reasonable and proper finding on the question of whether there was a PE of the private equity fund by taking into account the essential nature of the fund and all the relevant facts and circumstances of the domestic activities of the fund. On the other hand, with the signing of Multilateral Instrument implementing BEPS and 2017 update of the OECD Model Tax Convention as part of the OECD/G20 BEPS Actions on preventing tax avoidance of Multinational Enterprises, the traditional PE concept is being significantly transformed to include formerly non-PE constituting activities. Furthermore, the recent global discourse on the digital economy and taxation floats the significant economic or digital presence as a concept to complement or even replace the traditional PE concept. Accordingly, taking stock of these developments and changes in PE concept, the government should grapple with the way forward to design a relevant international tax legislation and tax treaty policy that can secure fair and legitimate taxation right of the country.