해외 부동산투자와 조세문제

Abstract

Lately it seems to become an epidemic for domestic well-to-do's to invest in foreign real property. The government has a few good reasons to let this trend go, which are such as controlling overflowing foreign currencies and holding the real property prices. From the perspective of taxation, it should be cherished that the equity in taxation on domestic investment and cross-border investment be kept. In this article the current tax laws have been analyzed from such viewpoint especially in the area of foreign real property investment. The following are notable policy suggestions from such study made in the article. The current foreign tax credit has to be amended to let the investors have reimbursement of indirect tax which has been paid by foreign company invested by domestic funds. Because such indirect tax credit may entail some technical difficulties in its implementation, participation exemption which has been found not to be included in the list of 'harmful tax practices' by the OECD deserves to be considered as an alternative. To cope with international tax avoidance activities utilizing indirect investment structures a tax authority may have to rely on 'substance over form rule' or its like kind. Although the reality is as such, the legal stability which is one of the key foundations for the development of economy has to be enhanced by the tax authority through pertinent rule making in advance. Tax avoidance may happen in the taxation of gift and inheritance as well as in income taxation. As a preventive measure to counter such international tax avoidance through migration, departure tax may be contemplated positively. The departure tax is exceptional in that it brings unrealized capital gains under taxation. However such exception is acceptable for the purpose of equitable taxation, which is proved by not a few examples in other countries. As for the investment through tax havens, the mark-to-market principle may be an effective countermeasure for possible tax avoidance. Currently the CFC regime is based on effective tax rate method. As an effective measure to counter possible tax deferral through a subsidiary in a relatively higher taxed jurisdiction, global method may be introduced in the CFC regime. In this juncture information exchange between tax authorities is also to be facilitated.