법인세법상 ‘실질적 관리장소’의 판단기준

Abstract

If we define the concept of the place of effective management in corporate tax law as 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, which was proposed by OECD model tax treaty comment, it is possible to take a step-by-step approach as to whether any act can be seen as key management and commercial decisions. When we divide prima facie the decision-making process of the company into the five steps as such ⅰ) planning of any act, ⅱ) consultation with other departments within the company, ⅲ) approval of the plan - a choice of several different plans, ⅳ) the execution of the decision, ⅴ) the evaluation of the decision, the third step, which belongs to decision management step, will be an key management step in that it will be able to create the risk. This step would be the step which the aspects of financial accounting, i.e. execution of the right of personnel management, can be emphasized. The fourth step, which can be performed by executive managers and/or shop floor, and commercial activity takes place, is the step which the aspects of cost management accounting can be emphasized. Basically ‘place of effective management’ point to a place, where the board of directors of the Company wil be held. But when the decision-making of the company substantially is done by ‘people’ other than the board of directors - for example, the CEO, the largest shareholder, and the parent company, and the board of directors make a role to endorse such decisions, exceptionally ‘place of effective management’ will be the place, where the CEO, the largest shareholder, and the parent company actually make decisions regarding the management of the company. In principle, there is only one place of effective management, but in some cases, there will be able to be more than one place of effective management. ‘Place of effective management’ in the corporate tax law is the connection elements as the residence decision, whereas ‘place of effective management’ in tax treaty is being discussed as the principle(the so-called “tie-breaker rule”), which comes the first in case of the presence of more than one residence. I do not think that in the interpretation of the ‘place of effective management’ as an element of the residence decision OECD annotations should be accepted intact. Applications of the concept of the place of effective management come to end in fact as a matter of proof, whether the fact to admit tax liability in the Republic of Korea as a domestic corporation exist or not in contrast to the exterior, even although in form or at first glance a foreign corporation is evident. I think it is sound that to deny the fact of a domestic corporation, taxpayers for themselves must prove the fact that the place of effective management exist in other countries, considering the difficulty of proving, and the equity between the parties.