Meaning and Basis of Judgment on “Place of Effective Management” under the Corporate Income Tax Law of Korea: Judgment of January 14, 2016, 2014Du8896, Supreme Court of Korea

Abstract

Previously, the Korean Corporate Income Tax Law considered the head office location as a standard for determination of a domestic corporation. While it additionally introduced the concept of place of effective management in 2005, its relationship with the existing determination standard, that is, location of head office, as well as definition and relevant standards were not clearly defined. Once a foreign corporation is treated as a domestic corporation, it faces a significant tax effect as it bears, among others, unlimited tax liability toward the domestic tax authorities. Place of effective management is a general concept which has great influence on the status of taxpayers under taw laws and may result in serious infringement of predictability and legal stability of international investments. Since the definition of place of effective management is too broad, it needs to be narrowly interpreted. In order to derive a reasonable interpretation of the definition and judgment standard regarding place of effective management, it is necessary to conduct a comparative analysis by reviewing i) Discussions of the Organization for Economic Cooperation and Development (the “OECD”) on the concept of “place of effective management” under tax treaties, which is the origin of the term, ii) relevant legislation of other countries, and ii) the permanent establishment taxation (the “PE taxation) and controlled foreign corporation taxation (the “CFC taxation”), which are directly related to the new standard under the domestic tax laws for both inbound and outbound transactions. First, in relation to the concept of place of effective management under tax treaties, the factors used to determine the residency of dual resident entities, that is, intent or purpose of tax avoidance, may be considered to restrict the applicable scope of the principle of place of effective management. Further, based on the fact that the place of effective management principle has a more severe tax effect than PE taxation and CFC taxation, the requirements for PE taxation and CFC taxation shall also be fulfilled for inbound transactions and outbound transactions. Therefore, in order to apply the place of effective management principle, a tax evasion purpose needs to exist, and there must be additional and important circumstances in addition to the requirements for PE taxation and CFC taxation. Recently, the Supreme Court rendered that the place of effective management refers to a location where key management and commercial decisions necessary for business operations are implemented, and factors such as the location where meeting of the board of directors is held, location where the chief executive officer performs, etc. shall be taken into account. In particular, with regard to a foreign corporation’s transfer of residence to Korea, the ruling is significant in that it imposed a strict standard by requiring discontinuance of relevancy with the previous place of effective management. This, while not being explicit, conforms with the discussions in this study to the effect that the place of effective management principle shall be deemed as a restrictive concept which supplements the head office location standard.