외국은행 국내지점의 대본점 송금예정액에 대한 세법상 취급 - 지점세제 및 과소자본세제를 중심으로 -

Abstract

Complied with Korean Business Accounting Standards, the Korean branch of a foreign corporation must not report the remittable amount to the head office as liabilities in its balance sheet. Conversely, Korean Bank Accounting Standards provide that the Korean branch of a foreign bank report it as liabilities in the balance sheet. Applying the branch profits tax rule and the thin capitalization rule, generally,the increase of liabilities in the balance sheet makes branch profits tax amount and the amount of disallowed interest deductions increase, For instance, when the Korean branch’s liabilities increase, the branch’s net equity decreases, the deemed reinvesting amount of Art. 96. of Korean Corporate Income Tax Act decreases, and then the foreign corporation’s branch profits tax burden increases. Such tax consequence is unfavorable to taxpayers. As standards or practices of corporate accounting shall be respected, some might argue that the scheduled remittance to the head office be included in the balance sheet concerning the branch profits tax rule and the thin capitalization rule. However, such argument is not convincing, since the related rules must be interpreted as meaning that the remittable amount is not included in liabilities in the balance sheet to comply with the purpose of the rules and the limit of delegated legislation, and to consider relationship with rules in respect of filing documents for tax return, fairness of taxation between foreign banks and other foreign corporations. The lack of clarification of taxable factors of these related rules makes the interpretation difficult. Such lawmaking attitude could be justified only when the effort to identify such factors is greater than the one to interpret rules.