국제투자펀드에 대한 조세조약 적용- 이자소득에 대한 과세를 중심으로 -

Abstract

Under domestic tax laws of many jurisdictions, collective investment funds are not taxed on the income received. They do not pay tax either on all income received or only on as much income as they distribute to the investors by dint of their legal characteristics. These traits as pass through entities under domestic tax laws of their establishment render themselves some significant problems when the issue of tax treaty application comes up. Their beneficial ownership under the provisions of tax treaties or substantial(economic) ownership in domestic tax laws as some corresponding concept to beneficial ownership to the income received by collective investment funds are usually questioned. Under domestic tax laws of Korea collective investment funds are treated as such pass through entities. According to administrative rulings by tax authorities the investors to the funds are to be taxed and therefore tax treaty with the state of its establishment is not applied at all. Usually the investor to a fund is regarded as beneficial owner or substantial owner of the income received by the fund as far as attributable to the investor. The position taken by tax authorities have a very strong logical argument that tax has to be levied on person who has earned substantial economic gains, which is also supported by practices and interpretations by many countries and the OECD. However it causes uncertainty as to the issue who are to regarded as a beneficial owner(or substantial owner) and ensuing administrative difficulties to a significant degree. Through our research in this article we could find out some very good examples including a system of tax treaties which deems a fund satisfying the requirements prescribed by tax treaties or domestic tax laws as a resident or beneficial owner. In regard to interest income earned by individuals the EU is now running a system within its jurisdiction by which interest income earned by individuals of member states is taxed by a state of each individual's residence. This system is supported by strengthened exchange of information. This system has been implemented only for a few years but seems to have increased certainty as to the taxation of interest income because it preempts the necessity of the application of tax treaties between member states. As a non-member state Korea may introduce the same system only on a bilateral basis, which is definitely to be pondered upon for its introduction though. Furthermore as a member state of the OECD, Korea may have to watch the movements as to the treatment of the collective investment funds in the Committee of Fiscal Affairs of the OECD. In this committee the treatment of collective investment fund as a resident or beneficial owner is being discussed now.