룩셈부르크 공모펀드의 국내투자에 대한 조세조약 적용 문제 - 대법원 2020. 1. 16. 선고 2016두35854 판결을 중심으로 -

Supreme Court of Korea has recently ruled in the decision 2016두35854(Jan. 16, 2020) that a SICAV(société d’investissement à capital variable) founded in Luxembourg is a resident of Luxembourg and a beneficial owner of the income derived from investment in Korean securities under Korea-Luxembourg tax treaty and that the SICAV is not subject to Article 28 of the treaty designed to exclude certain companies from the treaty benefits, thereby annulling the tax assessment against a number of domestic withholding agents by the National Tax Service. As Luxembourg is a world-renowned center of global fund industry whose investment in Korean securities is ranked 3rd in terms of inbound foreign investments among major economies of the world, the Supreme Court decision is significant as the first of its kind related to tax treaty application to overseas collective investment vehicles(CIV) in the form of SICAV on domestic source income. This paper supports the Supreme Court decision by arguing that Luxembourg SICAV is a resident and beneficial owner under Korea-Luxembourg tax treaty and that Article 28 of the treaty does not apply to such SICAV under 1988 Luxembourg law after examining the OECD position on the granting of tax treaty benefits to CIVs, the Supreme Court’s jurisprudence on beneficial ownership, and analyzing similar provisions to Article 28 in Luxembourg tax treaties with other countries. The Supreme Court decision pertains to a case before the implementation in 2012 of the tax treaty application procedure with respect to overseas investment vehicles under Corporate Tax Act Art. 98-6. The controversy around the case arose from a variety of factors such as the peculiarity of Luxembourg and its fund industry, the exclusion approach in Korea-Luxembourg tax treaty Article 28, and the developments on the interpretation of beneficial owner and substantive owner concepts, which finally was settled by the Supreme Court. Nevertheless, it seems inappropriate for the Supreme Court decision to fail to articulate on the application of the jurisprudence of CJENM decision(2017du33008, Nov. 15, 2018) on beneficial ownership and substantive ownership to CIVs. The author hopes for further progress on the discussion on the taxation system regarding the overseas collective investment vehicles among the tax lawyers and practitioners.