국내법과 조세조약- 과소자본세제상 소득구분을 중심으로 -

The purpose of this paper is to propose a de lege lata solution of the interrelation between the domestic laws and the tax treaties arising out of the classification of income of the excess interest under the thin capitalization regime. The result of the study is as follows: First, in the case of the tax treaty following the definition of dividends in the OECD Model Tax Convention, the excess interest deemed as dividends under the domestic thin capitalization rule could be regarded as dividends for the application of the tax treaty. The recent Korean Supreme Court decision (DBS case) has also presumed this theory in a appropriate way. Although the excess interest under the thin cap rule is deemed as dividends in Korea on the one hand, and deemed as an interest under the applicable tax treaty on the other hand, the deemed dividends of the excess interest shall not be re-characterized as an interest in Korea. At that time it’s just a matter of the application of the reduced tax rate under the tax treaty. With respect thereto, the repealed Article 28 of the Law for Coordination of International Tax Affairs had long invoked some misunderstanding that the income classification under the tax treaty could override the same under the domestic law. Therefore, it seems very timely that the clause was repealed at the end of 2018 for such reason. In the case of a tax treaty having no definition of dividends such as the Korea-U.S. Tax Treaty, it is reasonable to characterize the excess interest as dividends under the application of the tax treaty as a result of the application of the Article 2(2) of the treaty in which any term used in this Convention and not defined in this Convention shall have the meaning which it has under the laws of the Contracting state whose tax is being determined. Thus, the recent ruling of the Korean Ministry of Strategy and Finance which acknowledges the application of the reduced rate of interest under the tax treaty should be reconsidered.