국외공모투자기구에게 지급된 소득의 경정청구권자에 관한 해석 ―서울고등법원 2020.7.17. 선고 2019누52944 판결에 대한 비판적 검토―

Withholding of tax on overseas investment vehicles (“OIVs”) is prescribed by Article 98-6 of the Corporate Income Tax Act (“OIV rule”). The Seoul High Court made a decision (“Decision”) that only foreign ultimate investors of public OIVs could make a tax refund claim of the OIV rule. This article criticizes the Decision and suggests how to interpret the refund claim clause of the OIV rule (“Clause”). Concretely, this article analyzes this issue from the standpoints of legal nature of OIV rule, differences between private OIVs and public ones, and the Supreme Court of Korea decisions. The results of such analysis are summarized as below. First, the Clause should be interpreted in accordance with its purpose, because it is a relief procedure for taxpayers. Second, teleological interpretation should be applied to the Clause, since the primal issue of the Decision is how to clarify the meaning of the Clause. Public OIVs should be allowed to make a tax refund claim of the OIV rule, judging from the purpose of the Clause, the system of the OIV rule, and the Supreme Court Decisions regarding tax refund claims. Third, Article 93-2 of the 2018 Corporate Income Tax Act may also be a legal ground to support the interpretation that corporate-type public OIVs are allowed to make a tax refund claim of the OIV rule. In short, public OIVs as well as their foreign ultimate investors are authorized to make a tax refund claim under the OIV rule. Therefore, the Decision is not right and should be reviewed by the Supreme Court from the perspectives of three points explained above.