현행 동업기업 과세특례 상비거주자 과세의 개선방안에 관한 연구- 경영참여형 사모집합투자기구 유한책임사원 단계의 소득구분을 중심으로 -

Abstract

This paper is to evaluate the current partnership taxation with respect to the taxation of non-resident investors of private equity funds(PEF) as limited partner on each perspective of interpretation and legislation purposes and to put forward the legislative proposals to address the problems detected through the above-mentioned evaluation process, the results of which are as follows. First, the artificial conversion of stock capital gains into dividend at limited partners of PEF causes non-resident corporations to be in a worse position compared to resident corporations and leaves non-resident individuals in normatively neutral position as compared to resident individuals in tax treatments. In sum, the current partnership taxation in Korea is discriminatory towards non-residents in situations comparable to those of residents on a tax policy perspective. Second, the current partnership tax regimes can not be justified through reasons of public interests overriding the above-mentioned discrimination, such as ‘effective fiscal supervision’, ‘prevention of international tax avoidance’, ‘fiscal coherence of national tax system’, ‘neutralization of withholding tax burden by resident country’ etc. Therefore this discriminatory treatment might well be addressed through new legislative measures. Third, in case of limited partners of PEF, it is appropriate for limited partners to be in the same position as partnership in respect of the qualification of income realized on the level of partnership. If not, at least limited partners as non-resident might as well be able to take the same position thereof, which is in harmony with tax neutrality principle between direct investment and indirect investment through the PEF. Fourth, the artificial conversion thereof causes uncertainties on the application of tax treaties, imbalance between pension investors and the other investors and unconformity against international norms or practices etc., which shall be addressed through the above-mentioned flow-through treatment with respect to income qualification, at least on non-resident investors. Fifth, the artificial conversion thereof may impede international inbound funding activities and create incentives to set up PEFs at foreign countries. Therefore the artificial conversion thereof shall be replaced with the above-mentioned flow-through treatment, which may be conducive to the object of providing various alternatives with investors. Sixth, the application of the above-mentioned flow-through treatment might as well be limited to the non-residents of countries which conclude tax treaties with Korea. Seventh, the above-mentioned flow-through treatment will not cause additional problems such as abusive uses of net operational losses or expenses, etc.