OECD모델조세조약주석상“수익적 소유” 개념 해석지침에 관한 연구

초록

In this study the writer analyzes the interpretational approach to apply the interpretation guideline for the “beneficial ownership” concept in the new OECD Model Tax Convention Commentaries for the interpretation and application of domestic tax laws and tax treaties of Korea, and also proposes a revision of a number of relevant articles in the domestic tax laws in this topic area. The new OECD Model Tax Convention Commentaries as revised in 2014 recognize beneficial ownership in case the recipient of income is not obligated to transfer the received income to other parties under the terms of a contract or law because he or she may be deemed to enjoy the right to use and benefit from the income. Until recently, Korean courts decided on the applicability of a specific tax treaty to a non-resident by deliberating whether the facts proved satisfy the substantive factors common to both substantive attribution concept and beneficial ownership concept, under the proposition that the two concepts have basically the same meaning. If the court accepts the new guideline but does not allow the more generous interpretation of the substantive attribution concept (when compared to the new guideline for the beneficial ownership concept), a non-resident who is a beneficial owner, but is not a substantive owner of income may fall into a position where he or she is not entitled to apply the relevant tax treaty because the tax liability has not occurred to him or her under the domestic tax laws of Korea. Supreme Court Decision 2017Du33008, 2018.11.15. and Supreme Court Decision 2018Du38376, 2018.11.29. accepted the new guideline, which is understandable in terms of generally accepted principle of interpretation of tax laws. These two decisions show that the judges made efforts to coordinate the new guideline with the traditional interpretation of the substantive attribution concept. Yet in the main paragraph of the decisions, “the application may be denied in case when it is deemed there was a tax treaty abuse according to the Basic National Tax Act although a non-resident is deemed as the beneficial owner of ***” should have been amended to “the application may be denied in case when it is deemed that the nominal ownership is not deemed to match the substantive ownership according to the Basic National Tax Act although a non-resident is deemed as the beneficial owner of ***”. The substantive attribution provision in the Basic National Tax Act requires that taxation should be made to the substance consistently irrespective of the existence of tax avoidance. Frequently the application of the substantive attribution provision is put into consideration aggresively in case of tax avoidance. But the provision is not an anti-avoidance provision per se. If the benefit provided by a tax treaty is not allowed as a result of the application of domestic tax law provisions, it may be deemed as a treaty override. From the same perspective Paragraph 2 of Article 2-2 of the International Tax Coordination Act should be deleted. An “act of receiving tax treaty benefits in an unfair manner” may not be sanctioned directly by domestic tax laws. Article 93-2 of the Corporate Tax Act provides a guideline according to which an overseas investment vehicle is to be recognized as a substantive owner (or attributee). Na in Sub-paragraph 1 Paragraph 1 of Article 93-2 of the Corporate Tax Act stipulates that the substantive attribution of income may not be accepted in case of tax treaty abuse. This entails the same problem as Paragraph 3 of Article 2-2 of the International Tax Coordination Act. It has to be abolished or revised to “for the purpose of enjoying the benefit of the Income Tax Act or Corporate Tax Act”.

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