원천징수의무자의 실질귀속자확정의무 제한에 관한 소고 - 조세조약상 수익적소유자 판정 및 실질적 심사를 중심으로 -

Abstract

Although there may be various means of collecting tax, the reason why the scope of application of the withholding system could be gradually expanded is due to the collection efficiency. However, this efficiency is effective in the position of the state and the original taxpayer(income recipient). In this article, we propose a method to limit the scope of the withholding obligation to a reasonable level in relation to the determination of the substantive attributor of the withholding agent. This article describes (Ⅰ) Introduction, (II) The liabilities of the withholding agent and the necessity of its limitation, (Ⅲ) Basic discussion on the determination of the substantive attributor, and (Ⅳ) The problem of determination of the beneficial owner and the improvement measures, (V) The problem of the substantial review when the withholding agent decides the substantive attributor and the improvement measures, and (Ⅵ) Conclusion. This article presents the necessity of limiting the obligation of withholding agent as follows. The legal status of a withholding agent is a third party, neither a tax administration nor an original taxpayer. The withholding system is not itself unconstitutional, and the constitutional basis for the withholding obligation can be found in Article 59, not the tax liabilities in Article 38 of the Constitution. And the withholding obligation can be regarded as a public law obligation. The withholding agent does not have the same level of rights as the state, such as the right to request information and the right to investigate. But the withholding agent bears full responsibility for non-compliance or underperformance of withholding tax, such as additional tax and criminal punishments, which is burdensome. Although it is an obligation under public law, it is of a nature that cannot be expanded like the tax liabilities under Article 38 of the Constitution. Therefore, the withholding obligation cannot be extended without limitation, and certain limits need to be set in terms of the self-responsibility principle. In particular, the obligation to determine the substantive attributor, which requires a substantial review, can be said to be unsuitable as a withholding obligation, and it is excessive to pay additional tax for non-compliance with the withholding obligation. The contents related to the determination of the beneficial owner under the tax treaty of the withholding agent are as follows. The withholding agent only needs to determine whether or not the substantive attributor. As the Supreme Court recently changed the judgment on the beneficial owner, the burden on the withholding agent may increase, but it is not necessary to determine both the beneficial owner and the substantive attributor. It is sufficient for the withholding agent to determine only the substantive attributor. The contents related to the substantial review when the withholding agent determines the substantive attributor are as follows. According to the interpretation theory of the Supreme Court and the provisions of the Individual Tax Law, the confirmation of the substantive attributor includes determining the subjective purpose of income recipient, which is a substantive review. This is contrary to the principle of self-responsibility under the constitution, and it is reasonable that the liabilities of withholding agent to determine the substantive attributor is subject to formal review, excluding substantive review. As such, it is worth referring to the withholding tax special rule for non-real name assets as an example of requiring only formal review to the withholding agent. Even if the withholding is incorrect as a result of fulfilling the withholding obligation by trusting the report submitted by the taxpayer, such as an application for non-taxation/exemption or an application for the application of a restricted tax rate, it is reasonable to admit that the withholding agent has a justifiable cause for exemption of additional tax.