한·중 조세조약상 수익적 소유자

Abstract

The term ‘beneficial owner’ was accepted by the Korea‐China tax treaty, which was concluded in 1994, to against treaty shopping, one kind of tax avoidances. That means only beneficial owners who received the income of dividends (Article 10), interests (Article 11) and royalties (Article 12) can enjoy the limited source taxations in the Source State. However, since there have been many cases happened using the term ‘beneficial owner’ to against treaty shopping in other kinds, such as the tax treaty benefit that the Source States could not tax the capital gains, whether the term ‘beneficial owner’ can be introduced into the Korea‐China tax treaty to against the treaty shopping that abusing such other tax treaty benefits has become an urgent problem. Although the term ‘beneficial owner’ was introduced into the Korea‐China tax treaty, the treaty did not define it. So if two States want to apply the ‘beneficial owner’ rule effectively, they had to interpret it first. The Paragraph 2 of Article 3 in Korea‐China tax treaty provides the regulations on how to interpret undefined terms. Unfortunately, because there are no domestic laws of two States involving the term ‘beneficial owner’, it still can be interpreted according to the Paragraph 2 of Article 3. In such cases, the interpretation rules of the Vienna Convention on the Law of Treaties (VCLT) shall be complied. Unfortunately again, it is difficult to interpret the ‘beneficial owner’ according to the VCLT as well. Contrary to the unclear interpretation rules of the VCLT, there are many detailed interpretations made by Korea and China’s tax authorities and courts. What the effectiveness of these interpretations? Shall taxpayers obey such interpretations? And since the interpretations are not totally identical, they will result in imbalance to the taxpayers, what shall two States do to eliminate such unbalanced situation? This paper will give answers to the questions.