국내세법상 실질과세원칙과조세조약상 수익적 소유자 개념의 해석과 적용 - 대법원 2018. 11. 15. 선고 2017두33008 판결 등을 중심으로 -

Previously, the Supreme Court tended to use the substance over form principle to determine whether a tax treaty was applicable, with the underlying assumption that the substance over form principle could apply to the interpretation and implementation of tax treaties. Accordingly, there was no distinction made between the concept of “beneficial owner” under tax treaties and “substantive owner” under the substance over form principle. However, two recent Supreme Court cases (2017Du33008, decision rendered on November 15, 2018; 2018Du38376, decision rendered on November 29, 2018) established the meaning of “beneficial owner” under tax treaties for the very first time and also the relevant factors to be considered by reflecting the 2014 OECD Model Tax Convention Commentary. Also, these decisions made clear that even if the income recipient was treated as the beneficial owner under the tax treaty, tax treaty benefits could be denied in case of any tax treaty abuse based on the substance over form principle. To decide whether the tax treaty is applicable to the dividend, interest, or royalty income, “objective factors” such as usage and management of the income, business activities of the income recipient should be considered first to determine whether the income recipient is the beneficial owner. Afterwards, “subjective/ normative factors” are considered to determine whether a tax treaty abuse exists by focusing on facts relating to the income recipient or existence of a tax avoidance intent. These Supreme Court decisions now put more emphasis on the objective factors, which is quite meaningful from a legal/practical perspective. Before the recent Supreme Court cases, the prevailing tax administrative practice regarding tax treaty application was to apply the normative factor (i.e., whether appropriate to allow tax treaty benefits if a transaction resulted in application of a more favorable tax treaty). However, after the 2017Du33008 Supreme Court decision, the Supreme Court has continued to use objective factors, such as business activities of the income recipient, usage and management of the income, establishment purpose and business operation history, etc. to determine whether the tax treaty was applicable. Moreover, if the income recipient controlled/managed the income and enjoyed usage/benefits of the income, then application of the tax treaty could not be denied, even if there was a reduction of taxes due to the transaction by the taxpayer. Such legal determination made in the 2017Du33008 Supreme Court case was reasonable given that the taxpayer is not obligated to choose a transaction which generates the most tax, and the reasoning is in line with international standards.