Limited Partnership에 대한 소득의 실질귀속

초록

In this paper the author reviewed the recent Korean Supreme Court decisions published since 2012 to find out its position as to the issues whether a foreign limited partnership is to be regarded as a corporate body and whether the income received by it has also to be attributed it for taxation purpose, pointed out their logical inconsistencies and suggested a new approach for the interpretation of related tax law provisions under the contemporary tax laws. The courts have been admitting the foreign limited partnership as a foreign corporation because it is most similar to “hapjahoesa” under the old Korean Commerce Code that is treated as a domestic corporation under the Corporation Tax Act, the approach of which may be called as “similarity comparison”. The substance attribution rule under the Basic national Tax Act has been accepted as one of anti-avoidance rules by the courts. A limited partnership located in a tax haven jurisdiction has been accepted as a fair attributee of income in case it shows due business purpose. Such a position was initiated by the famous Lone Star decision in January of 2012. The Supreme Court treated the US LLC as a pseudo-pass through entity in the US LLC case in July of 2014. The interpretation of a residence provision(Article 4) of the Korea-US tax treaty in that case by the court was an overly purposive interpretation. Such an unnatural interpretation would have been avoided with a careful review of the substantial attribution among the facts of the case. On the other hand, in the decision for Carrefour case by the Supreme Court in July of 2014, the court said that the substantial attribution of income has to be determined not by the roles exercised but by the use and enjoy of income produced by the entity, and also said meaningfully that the substance taxation rule is not just an anti-avoidance rule. The revised Presidential Decree of the Corporation Tax Act in 2013 has made the “similarity comparison” as a statutory rule, according to which a foreign limited partnership is to be determined as being the most similar to “hapjajohap” newly introduced in the Korean Commerce Code revised in 2011. And therefore it has to be treated as a non-corporate body because a hapjajohap is treated as such. And furthermore in case a foreign limited partnership is an overseas investment vehicle, the income it receives may not be attributed to it for corporate or income tax purposes according to the new Article 98-6 introduced in the Corporation Tax Act in 2011. Even when the position taken by the Supreme Court in the cases since 2012 is accepted and a foreign limited partnership is deemed as a foreign corporation, the income is not to be attributed to it, though. Such interpretation conforms to the position taken in the Commentary to Article 1 of the OECD Model Tax Convention revised in 2010. Finally, for the cases occurred after 2011, a foreign limited partnership is properly not to be regarded a foreign corporation(refer to the revised Commerce Code), and the income attribution to it should be denied in case it plays a role as an investment vehicle(refer to the new Article 98-6 of the Corporation Tax Act).

키워드