2017년 국제조세 판례회고

This paper introduces four of the Supreme Court’s decisions rendered during the year 2017 that are expected to serve as meaningful precedents for International Taxation, together with a short commentary on their implications. The Supreme Court did not make many decisions with regard to international taxation in 2017, but there were several decisions on Lone Star Funds (Supreme Court 2017.7.11. 2015Du55134, 55141；Supreme Court 2017.10.12. 2014Du3044, 3051；Supreme Court 2017.12.28. 2017Du59253). The decisions above reaffirmed the position of the previous Supreme Court precedents on the beneficial owner of the domestic withholding income and the scope of application of tax treaties on foreign overseas investment vehicles that are transparent entities. On another hand, the aforementioned decisions were particularly meaningful in that the Supreme Court decided for the first time that, with regard to claim of reassessment of withheld taxes of a non-resident or foreign entity, the income earner as stated on the particulars of account and withholding receipt may make such claims under the premise that it is the beneficial owner of the income even though it may actually be the superficial owner of such income, and that the Supreme Court stated clearly, with regard to funds, that in order to fulfill the requirements for a dependent agent as needed to be recognized as a deemed permanent establishment, the agent must have the power to execute contracts on behalf of the foreign fund and must have repetitively exercised such powers. Seoul High Court 2017.6.22. 2017Nu35846 Decision, finalized at the Supreme Court by discontinuance of trial, offered an important interpretation on how to define ‘voting shares’ in application of the Korean-Japanese Tax Treaty.