The Taxation of Foreign Passive Income for Groups of Companies in Korea

Abstract

Korean tax law has neither typical GAAR nor specific anti-avoidance provisions particularly targeting only foreign passive income even though it has some special anti-avoidance measures such as transfer pricing rules, thin capitalization rules, the CFC rules. However, Korean tax authorities has extensively applied the substance-over-form principle (provided in tax laws) against cross-border tax avoidance schemes, especially treaty shopping attempts which often involve foreign passive income such as dividends, interest and royalties. Korea introduced the CFC rules in 1996 to control the outflow of capital overseas, specifically targeting the moving of money in the underground economy to tax havens. The Korean CFC rules principally rely on the jurisdictional approach but apply the transactional approach in exceptional cases. These rules apply to Korean residents, both corporations and individuals that have invested in a company incorporated in a foreign jurisdiction with an average effective tax rate of 15% or less on actually accrued income for the past three years. Where a CFC has retained earnings, it is deemed that dividends are distributed to the resident shareholder at the end of each fiscal year of the CFC. The deemed dividends are included in the shareholder’s profits or dividend income for the taxable year on which the sixtieth day after the end of the particular fiscal year of the CFC falls. However if the CFC is actively engaged in a business operation through an office, shop or factory, it is not subject to the CFC rules in principle. If the CFC actually distributes dividends from the relevant retained earnings, such amount is not taxable so that such dividends will not be taxed twice. Foreign tax credit is allowed when actual dividends are paid from the CFC and indirect foreign tax credit is also available when the distributable regained earnings are attributed to residents. The accumulated amount of the deemed dividends minus the actual dividends by the time when the shares are sold is not taxable if the shares are disposed by a domestic corporation, or is not characterized as capital gains from the disposition of the shares. Although a resident corporation has to recognize deemed dividend income, it cannot reflect the business losses of its CFC. There is no particular mechanism in Korean CFC rules to cure possible double taxation caused by simultaneous application of respective country’s own CFC rules on the same CFC.