해외 혼성사업체 과세방식에 관한 소고

Abstract

The purpose of this study is to review the requirement for classification of foreign hybrid(or reverse-hybrid) entities as foreign corporation under the Korean corporate tax law. This study mainly focuses on seeking a practical solution of the theme in Korea along with paying attention to the academic and judicial accomplishment in international tax area since the classification rule under the domestic tax law is indispensably related to the application of tax treaties. Specifically this paper first reviews the statutory structure and prior studies for the classification rule in Korea, and then tries to study the guidelines set out by the OECD and some leading countries such as the United States, Japan, U.K., Sweden, etc. in a fashion of comparative law. Based on such research, this paper further analyzes a few essentially related issues, i. e. the conflict with the concept of “residents” under the tax treaties, non-discrimination rule, and the perspective from efficiency and equity, etc. to solve the subject theme. Finally it tries to present the practical solution in Korea for the theme de lege lata as well as de lege ferenda. To sum up, the recent Lonestar decision rendered by Korean Supreme Court taking the similarity approach based on general law characteristics(other than the tax treatment) of a foreign entity seems to be appropriate given the necessity of the neutrality between the business entities both in domestic and abroad and the perspective of tax administrative efficiency even though it may cause ‘asymmetry’ resulting in double taxation(or non-taxation) and difficulties in the application of tax treaties. However it’s very skeptical to promulgate such approach de lege ferenda not only because it may contravene the international tendency including OECD guideline but because it look unclear that it might enhance the predictability which is the main purpose of such legislative effort in Korea.