세법상 거주자 개념

Abstract

The cross border movement seems to have become parts of daily life of persons in this global society. The taxation powers which are mainly built on the residence concept is tested by immense movement of persons. In this juncture the tax authorities are faced with the issue of how to apply the domestic tax laws and tax treaties for the purpose to protect their own fiscal pockets. And the tax courts are also required to keep good balance between the pursuit of legal certainty and the protection of fiscal sovereignty. Precedents of the courts in Korea in this regard show that the interpretation by the judges have been relatively conservative in that the literal meaning of tax law provisions were respected. Examples of foreign countries let us know that not a few countries are aggressive in both the application and legislation of tax laws to expand the concept of residence, the latter of which is represented by the exit tax. In the mean time the introduction of exit tax may not be conceivable without a major change in the government policy. As for the application of the residence concept in domestic tax laws and tax treaties the tax authority is expected to go further in the way of purposive interpretation. As a practical matter, uncertainty may be hurt in this regard. Advance ruling which is now allowed for only a few issues may as well be also allowed for the application of residence concept. The concept of residence is important not only for the protection of fiscal jurisdiction but also for the encouragement of inbound foreign investment. A few exemplary tax laws of foreign countries let us know how to apply the concept of residence to new residents from overseas in a lenient manner while extending it to those who depart home country for the purpose of tax avoidance by legislation. Minor amendments of tax laws which deviate from the traditional taxation principles may trigger a significant change in the direction of peoples' movement.