주식 양도소득 귀속 판정에 관한중한 사례 비교 연구- 명목회사 이용 사안에 관한 중국과 한국의 판례를 중심으로 -

Abstract

This paper focuses on comparatively reviewing the Chinese case (Supreme People’s Court Decision No. 1867, 2016, hereafter the Chinese case) and the Korean case (Supreme Court Decision 2012Du16466, 2014. 7.10.m hereafter the Korean case). The reviewed cases are based on issues about the substance over form principle in the context of international taxation. In detail, we found that there is similarity in the basic facts between these cases, which discussed capital gains from transferring stocks, and application of the substance over form principle regarding the intermediaries on corporate governance as a conduit in the context of international taxation. First of all, this paper examines the facts and circumstances of the Chinese case and the Korean case. Both cases are based on constructing the multiple-tier corporate governance, and taxing issues about capital gains derived from transferring equities of a intermediary company to others in international taxation. With respect to these similar facts and circumstances, the Chinese Court and the Korean Court followed similar but different logical paths. Chapter 2 of this paper scrutinizes factual matters, legal grounds, and the decision result of these cases. Chapter 3 comparatively reviews the details of tax logics. In the Chinese case, the Chinese court organized the logic and reasoning only based on Article 47 of the Chinese Corporate Income Tax Act, and the Tax Administrative Order No. 698 issued by the State Tax Administration. By the way, in the Korean case, the Korean court started explaining prerequisites on international taxation, and examined whether to apply the substance over form principle in the context of international taxation. Both courts also reviewed whether the intermediaries under these facts can be regarded as a conduit or not, but they made different results. In the course of review, the Korean court formulated its tax logic to reach the result much systemically than the Chinese court. Chapter 3 additionally discusses the impact of the Principal Purpose Test (hereafter, the PPT) of the OECD/G20 BEPS Project Action 6 Final Report. This test is similar to the substance over form principle in partial. According to the above, if the PPT is directly applied to a case similar to the above court decisions, the PPT might make a similar result.