법인세법 제93조의2 소고(小考)

This article examines Article 93-2 of the Korean Corporate Income Tax Act (the “Provision”) and explores its interpretation as well as potential areas for amendment. Korean tax law includes fundamental provisions governing the attribution of Korea‑sourced income to foreign taxpayers. These rules determine whether income should be attributed to a foreign business entity itself or to its shareholders who participate in that entity. The Supreme Court of Korea interpreted these provisions in the early and mid‑2010s, producing a line of case law often referred to as the “Lone Star doctrine” and the “divisible resident theory.” The central holding of these cases is that Korea‑sourced income earned by a limited partnership organized under a common‑law jurisdiction is taxable at the partnership level, rather than in the hands of its partners or investors. The Provision was introduced as a special rule intended to modify this outcome, which arose from the Supreme Court’s interpretation of the basic provisions of the Corporate Income Tax Act. It reflects the view that attribution of income should align with the availability of treaty benefits that is, income should be attributed to the taxpayer entitled to those benefits. From this starting point, the article analyzes the structure and key elements of the Provision and develops several main arguments and conclusions. First, the issue of income attribution in this context can be understood from two distinct perspectives: “attribution in substance” and “attribution in law.” The former concerns the “substance‑over‑form” doctrine and serves as a tool to address treaty abuse, whereas the latter focuses on whether a business entity should be classified as “transparent” or “opaque” for tax purposes. The Provision clearly pertains to the latter issue, making its use of the expression “attributee in substance” misleading. This terminology is particularly problematic because the question of “attribution in substance” may still arise even after income is attributed to either an entity or its shareholders whenever allegations of treaty abuse or tax avoidance are at stake. Second, the Provision employs the term “foreign investment vehicle” to define the scope of its application, thereby limiting its reach primarily to passive investment income. Nonetheless, considering that the Supreme Court’s “Lone Star” and “divisible resident” rulings were widely criticized and prompted the enactment of this Provision, it should be further amended to apply more broadly to foreign entities, including those engaged in active business operations, rather than being confined to passive investment income alone. Finally, the second paragraph of the Provision provides that if a foreign investment vehicle refuses to disclose the identities of its shareholders or investors, the income shall be attributed to the vehicle itself, and the vehicle shall be considered ineligible for treaty benefits. This rule appears to constitute a form of “treaty override.” Whether the Korean government, as a matter of tax treaty policy, indeed adopts a position that permits entering the domain of treaty override when deemed necessary is a noteworthy issue deserving further examination.