조세조약에 정의되지 않은 용어의 해석방법: 한국-일본 조세조약 제10조 제2항 (가)목의 해석론과 조세조약 정책상 개선방안

Abstract

The aim of this article is to analyze Article 10(2)(a) (the “Article”) of the Korea-Japan Tax Treaty (the “Tax Treaty”) based on the Supreme Court of Korea Decision 2018Du54408 dated July 21, 2021 (the “Marubeni case”) and to seek policy implications regarding terms not defined in tax treaties. The key points of this article are summarized as below. First, the essence of the Marubeni case is how to interpret “the end of the accounting period for which the distribution of profits takes place” (the “Clause”) of the Article. The Clause should be reviewed from the standpoints of Article 3(2) of the Tax Treaty and the legislation of both contracting states. Second, Japan has expressed its position on the Clause in its Exchange of Notes and tax rulings. This position is that Japan has regarded the Clause as “the end of accounting period for calculating the dividend”, based on Japan’s Company Act and dividend practice. Such position is also relevant from the viewpoints of the Commercial Act as well as the Corporate Income Tax Act of Korea. Third, where the approach explained above is not adopted, there will be several issues. For example, the purpose of the Article may not be achieved. In addition, a withholding agent may face unpredictability regarding withholding tax rates. Furthermore, there may be a possibility of abusing the Article for tax avoidance. Fourth, in the Marubeni case, the Supreme Court rendered a decision in favor of the withholding agent, explaining that the Clause should be interpreted as “the end of accounting period for calculating the dividend”, not “the end of accounting period in which a dividend resolution of a shareholders’ meeting or a board of directors meeting takes place”. This conclusion itself appears to be sound. However, the Supreme Court did not take into account Article 3(2) of the Tax Treaty as well as Japan’s position on the Clause. Nevertheless, the Marubeni case is important, since the Supreme Court corrected former wrong rulings of the National Tax Service, the Ministry of Finance and the Tax Tribunal and finally achieved a common interpretation. Fifth, Korea should carefully analyze other contracting states’ positions in concluding or amending tax treaties. Additionally, taxpayers, the National Tax Service, the Tax Tribunal and courts need to consider other contracting states’ positions in interpreting tax treaties. Besides, it is necessary for Korea to provide predictability for foreign investors and withholding agents through exchange of notes or mutual agreement procedures.