법인세법상 실질적 관리장소의 기본개념 및 판단요소

Abstract

At the end of 2005, Korean Corporate Income Tax Act(CITA) adopted additionally the place of effective management(POEM) test as a criterion of corporate residence without providing its specific definition. This paper aims to clarify the concept of POEM and consider relevant factors in applying POEM test in particular cases. The POEM under CITA is the terminology directly borrowed from tie-breaker rule under OECD Model Tax Convention(MTC) Article 4, Paragraph 3, which is originated from the concept of Central Management and Control(CMC) established by Lordburn in the decision of De Beers case in 1906. It is basically valid that in defining the POEM under CIT it follows the meaning of OECD MTC Commentary finally revised in 2008(2008 Commentary), which is defined as follows: “the place of effective management is the place where key management and commercial decisions that are necessary for the conduct of the entity’s business as a whole are in substance made.” It is more reasonable, however, that ‘in substance’ in this meaning is replaced by ‘actually.’ It should be also interpreted that ‘key management’ refers to the strategic management by the most senior person or a group of persons. In determining the relevant factors of POEM, 7 factors recommended in 2008 Commentary, which is designed as an alternative of current single tie-breaker rule(POEM) for the Mutual Agreement Procedure between the Contracting States, should generally be ignored. Instead, key factors of POEM suggested in the report of OECD Technical Advisory Group except for the fifth factor should be highly contemplated. Futhermore, when the specific location of the POEM is unable to be presented, the idea that the residence of directors falls under the POEM would be unacceptable.