‘단체 분류(Entity Classification)’에 관한 대법원 판례와 경제협력개발기구(OECD)의 ‘파트너쉽 보고서(Partnership Report)’의 조화(調和) 가능성에 관한 검토- 해석론과 문제점을 중심으로 -
A Mission Impossible - Is There a Way to Reconcile the New Case Law on Entity Classification in Korea and the OECD Partnership Report?
0
조회
0
다운로드
18
인용
0
참고문헌
키워드
초록
Korea has recently established a new law on the issue of entity classification. The introduction of the new law was first initiated by a number of decisions rendered in 2012 and 2013 by the Supreme Court, and backed up and complemented by an 2013 amendment of the Corporate Income Tax Act. This Article deals with the question of whether the current Korean law after all those changes can be reconciled with the 1999 Partnership Report of the OECD. In the heart of the new law lies the Supreme Court’s insistence on the method of entity classification provided in the Korean domestic tax law. While the Partnership Report proposed that the source state should take into account how the relevant taxpayers are taxed in their residence states, there is absolutely no trace of such consideration in the aforedaid Supreme Court’s decisions. This Article, thus after having confirmed that the new law and the Report are logically incompatible, attempts to suggest, based on the new law, a way of treaty interpretation that the Author believes would bear the least theoretical and practical difficulties. It should be added that, because the issue of entity classification had not been anticipated at the time the concept of income tax treaty initially came into existence, the ultimate remedy should come through amendment of each particular tax treaty.
Abstract
Korea has recently established a new law on the issue of entity classification. The introduction of the new law was first initiated by a number of decisions rendered in 2012 and 2013 by the Supreme Court, and backed up and complemented by an 2013 amendment of the Corporate Income Tax Act. This Article deals with the question of whether the current Korean law after all those changes can be reconciled with the 1999 Partnership Report of the OECD. In the heart of the new law lies the Supreme Court’s insistence on the method of entity classification provided in the Korean domestic tax law. While the Partnership Report proposed that the source state should take into account how the relevant taxpayers are taxed in their residence states, there is absolutely no trace of such consideration in the aforedaid Supreme Court’s decisions. This Article, thus after having confirmed that the new law and the Report are logically incompatible, attempts to suggest, based on the new law, a way of treaty interpretation that the Author believes would bear the least theoretical and practical difficulties. It should be added that, because the issue of entity classification had not been anticipated at the time the concept of income tax treaty initially came into existence, the ultimate remedy should come through amendment of each particular tax treaty.
참고문헌 (23)
- 김석환, "해외 혼성사업체 과세방식에 관한 소고", 조세학술논집, 29(1), pp.65~104 (2013), 한국국제조세협회
- 오윤, "국제조세법론" (2011), 한국학술정보
- 윤지현, "수익적 소유자(beneficial owner) 개념의 해석: 최근 국내외의 동향과 우리나라의 해석론", 사법, 1(25), pp.99~165 (2013), 사법발전재단
- 이재호, "법인세법상 외국단체의 법인판단방법에 대한 고찰", 조세법연구, 18(3), pp.218~261 (2012), 한국세법학회
- 이창희, "조세조약 해석방법", 조세학술논집, 23(2), pp.149~192 (2007), 한국국제조세협회
- 이창희, "파트너쉽과 국제조세", 조세학술논문집, 21(1) (2005), 한국국제조세협회
- 이창희, "세법강의" (2013), 박영사
- 이철송, "회사법강의" (2013), 박영사
- Frank A. Engelen, "Report on ‘The Application of the OECD Model Tax Convention to Partnerships’ and the Interpretation of Tax Treaties", European Taxation, pp.250~269 (2000)
- John F. Avery Johns, "Characterization of Other States’ Partnerships for Income Tax", Bulletin of International Fiscal Documentation, pp.288~320 (2002)
- Raffaele Russo, "The OECD Approach to Partnerships - Some Critical Remarks", European Taxation, pp.123~128 (2003)
- Joanna Wheeler, "The Attribution of Income to a Person for Tax Treaty Purposes", Bulletin of International Fiscal Documentation, pp.477~488 (2005)
- J. Wheeler, "The Missing Keystone of Income Tax Treaties", World Tax Journal, pp.247~367 (2011)
- J. Wheeler, "The Attribution of Income in the Netherlands and the United Kingdom", World Tax Journal, pp.39~175 (2011)
- Ji-Hyun Yoon, "An End of a Journey or a New Beginning? - The 2012 Trilogy of Supreme Court Decisions on International Tax", Asia-Pacific Tax Bulletin, pp.190~199 (2013)
- A.H.M. Daniels, "Issues in International Partnership Taxation – With special reference to the United States, Germany and the Netherlands" (1991), Kluwer Law and Taxation Publishers
- "Klaus Vogel on Double Taxation Conventions", ~ (1997)
- The Application of the OECD Model Tax Convention to Partnerships – A Critical Analysis of the Report Prepared by the OECD Committee on Fiscal Affairs, , Kluwer Law, ~ (2000)
- Robert Couzin, "Corporate Residence and International Taxation" (2002), IBFD
- Jesper Barenfeld, "Taxation of Cross-Border Partnerships" (2005), IBFD
- OECD, "The Application of the OECD Model Tax Convention to Partnerships", ~ (1999)
- Action Plan on Base Erosion and Profit Shifting, "OECD", ~ (2013)
- "Cahier de droit fiscal international Vol. 92b", IFA, ~ (2007)