외국 공모집합투자기구와 조세조약의 수익적 소유자 -룩셈부르크 회사형 펀드와 독일 계약형 펀드에 관한 대법원판결을 중심으로

The previous Supreme Court rulings adjudicated a few tax issues of overseas private equity funds that had invested in Korea through a legal form of common law countries’ limited partnerships after the late 1990’s financial crisis. Two important conclusions of such decisions rendered by the Supreme Court of Korea are as follows. First, an Anglo-Saxon limited partnership should be classified as a corporation which is subject to corporate income tax for Korean tax purposes. Second, the substantial owner of Korean-source income is the private equity fund itself, not the ultimate investors of such fund under the substance-over-form principle. In December 2019 and January 2020, the Supreme Court of Korea rendered a few decisions about overseas public collective investment vehicles (“CIVs”) that earned Korean-source income. The key issue of the decisions is whether a SICAV fund (i.e. a Luxembourg corporate-type public CIV) and a Sondervermögen (i.e. a German contractual-type public CIV) is a beneficial owner of the Korea-Luxembourg tax treaty and the Korea-Germany tax treaty. According to the OECD Commentaries on the Articles of the Model Tax Convention (“OECD Commentaries”), beneficial owners are those that have the right to use and enjoy the payment unconstrained by contractual or legal obligations to pass the payment on. Also, the OECD has a position that a CIV should be treated a beneficial owner of its income, if (1) it is widely held by its investors, (2) holds a various portfolio of investment assets, (3) is subject to investor-protection regulations in the country in which is set up, and (4) its managers have discretionary powers to manage its assets on behalf of the investors. In its decisions, the Supreme Court of Korea adopted the beneficial owner concept of the OECD Commentaries. Futhermore, the Supreme Court of Korea ruled that a Luxembourg SICAV fund and a German Sondervermögen fund should be regarded as beneficial owners of the Korea-Luxembourg tax treaty and the Korea-Germany tax treaty respectively. In other words, these CIVs are entitled to reduced withholding tax rate under the tax treaties. Therefore, the Supreme Court of Korea finally annulled the tax assessments against the overseas funds. This article analyzes the Supreme Court’s rulings on such cases and demonstrates that its conclusion as well as legal reasoning is right from the standpoints of not only the OECD positions explained above but also the previous private equity fund cases.