租稅條約上 所得의 歸屬에 관한 硏究

다국어 초록 (Multilingual Abstract)

The purpose of this thesis is to make research on the income attribution rules in tax treaties of major OECD countries inclusive of Republic of Korea and to suggest an interpretative guideline which reflects understandings shared by their competent authorities and courts. The provisions for the attribution of income in the OECD Model Tax Convention, which may be a good example of typical tax treaty of such countries, can be classified into 4 types as follow.
The first are the provisions which provide that the residence country of the recipient - a person whom income is 'paid to' - may tax on that income. Because the fact that the residence country may tax does not in itself mean that the source country is deprived of tax power, this type of provisions does not seem to require detailed discussion upon the meaning of 'paid to' for the purpose of actual allocation of tax power. But in case an individual tax treaty effectively restricts the source country's tax power on the recipient i.e, a person whom the income is paid to, the interpretation of 'paid to' has a crucial meaning both to the recipient and probably to the substantial owner of the income. Because contemporary tax treaties do not usually follow such pattern of allocation, the interpretation issue does not seem to attract significant attention for this type of provision.
According to the second type of income attribution the source country's tax power on the income paid to its beneficial owner is restricted within a certain preferential tax rate. For this type of provision the interpretation of the 'beneficial owner' matters. The concept of beneficial owner is not so old enough to build common understanding how it should be interpreted among treaty partners. Because this concept was created for the purpose of curtailing treaty shopping phenomena, it would be proper to interpret it in a purposive manner. Such interpretation may require some subjective considerations on the 'purpose' of tax treaties by each treaty partner, which consequently results in lowered reliability in the application of the term 'beneficial owner' along with diverse histories of each treaty partner in the development of legal system.
The third type of income attribution is based on the notion that the income shall be attributed to its 'economic owner'. The concept of economic owner is often raised where the legal owner is not to be easily found like in cost sharing arrangement situation or where each part or organ of a legal owner has to share some portion of income to the legal ower like in a permanent establishment situation. Because this concept does not appear in the text of actual tax treaties yet, detailed discussion on this is not made in this thesis.
The last type of provisions which is found most frequently in tax treaties follows the determination of income attribution by domestic tax laws of the source country and utilizes it in the tax treaty context which allocate tax power between treaty partners. The examples are 'derived by', 'earned by', 'accrues to' and 'alienated by'. Because the ultimate attribution of the income is determined by domestic tax laws of the source country, the issue how domestic tax laws are interpreted plays a key role for the actual allocation of tax power and accordingly affects tax burden of the recipient and probably the substantial(or beneficial) owner of the income. As is found in the case of 'beneficial owner' in tax treaties, the interpretation of income attribution provisions in domestic tax laws of each treaty partner is found not so reliable in most cases. This is due to the same reason that the attribution may sometimes have to be made in a purposive manner while the 'whether' and 'how' the purposive interpretation is made varies from country to country.
Each treaty partner admits that its counterpart has due authority to interpret and apply its tax treaties and its own domestic tax laws to meet their own purposes of existence. And it also seems to be understood by and large that both of the second type provisions and the fourth type provisions may result in the same attribution because the purposive interpretation - probably of the term 'substantial owner' - in domestic tax laws can substitute that of the term 'beneficial owner' in tax treaties. To assemble the common understanding found in the provisions of tax laws and the determinations of tax authorities or tax courts, the following definition may be rendered to the concept of 'beneficial owner' or 'substantial owner'.
A person who control, manage or alienate the economic interest and undertakes its risks is its 'beneficial owner' or 'substantial owner' whether it is attributable to him in the legal perspective or not.
The above definition reflects the fact that the current practices in the interpretation of attribution rules favor the concept of 'economic substance' in the countries on which I focused my research - the U.K. and the U.S. from common law states and Germany and Japan from civil law states - and these are motivated by the purpose to counteract against ever increasing phenomena of treaty shopping in the age of free trade and free movement of capital.
The above definition is rendered in a substantive way. It has some merits to enhance reliability in its application by the tax authorities in that it increases their confidence by letting them share current practices of neighbor countries. But the fundamental issue which attracts real attention seems to be left unsolved. It is not 'whether' the source country may depend upon the concept of 'economic substance' and the purposive interpretation methodology but 'how far'. Basically this question may not be answered in a uniform manner. The U.S. which has a strong tradition of purposive interpretation armored with court-developed anti-avoidance rules and of overriding treaties from time to time is an extreme example whereas Japan whose courts and scholars are very cautious in disregarding the legal transactions constructed by taxpayers stands in the opposite.
The Korean practice of which history is built up by creative efforts of tax authority, courts and scholars has been affected by Japanese legal system (inclusive of its interpretative tradition) since 1960's, the U.S.'s since 1970's and the OECD information since 1990's. The courts do not seem to discard the old tradition that the tax laws should be interpreted according to the exact literal meaning of the terms as are in the code. However, the perception seems to be being developed among the judges and scholars that a compromise has to be made between the 'purpose' and the 'literal meaning' to provide reasonable answers to the issues raised. Some evidences of such compromises may be found in the recent determinations of the tax courts and National Tax Tribunal. They usually take the form of purposive interpretation either of 'substance taxation rule'- which may be understood as corresponding US rule of 'substance over form' - as is in the Basic National Tax Act article 14 or 'beneficial owner' as is in the second type provisions in tax treaties.
Although the purposive interpretation seems to be as inevitable as has been argued for in the above, it entails uncertainty which in turn requires improvements in the domestic tax laws as follow. The rulings rendered by the authorities should be allowed to have binding force before the courts. Not all of the rulings may deserve to have such force because the facts and circumstances may not be considered for the issuance of every ruling. But there should be provided for some mechanism that a foreign taxpayer may know the reliable information on the tax effect from the transaction he is now contemplating to construct with a Korean counterpart. The current exceptional provision for binding rulings to the investors from low taxed regions as are enlisted in the National Tax Service Notice should be expanded to include transactions by any foreign taxpayers. As the last point, burden of proof deserves to be mentioned. If detailed allocation rules for burden of proof are made public, this will help the taxpayers know what has to be prepared by their own hands and what will happen without such preparation, which in turn helps the tax authority to get more information from the taxpayers and helps the taxpayers to decrease the anxiety from the uncertainty in the future coming.

목차 (Table of Contents)

• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圍와 方法 = 4
• 第2章 所得歸屬의 意義 = 7
• 第1節 國內稅法上 所得歸屬 = 7
• 第1項 意義 = 7
• 1. 所得課稅의 要件 = 7
• 2. 所得을 發生시키는 去來의 歸屬 = 8
• 第2項 規定 = 9
• 第2節 租稅條約上 所得歸屬 = 11
• 第1項 意義 = 11
• 1. 租稅條約 各 條項의 適用要件 = 11
• 2. 居住者 要件과의 區別 = 11
• 第2項 規定 = 13
• 第3節 兩者의 關係 = 19
• 第1項 適用段階 = 19
• 第2項 例外的인 경우 = 20
• 第3章 國內稅法上 所得歸屬 = 25
• 第1節 歸屬에 關한 實質課稅 = 25
• 第1項 實質課稅原則 = 25
• 第2項 法的 實質說 = 27
• 1. 論據 = 28
• 2. 問題點 = 29
• 第3項 經濟的 實質說 = 30
• 1. 論據 = 31
• 2. 問題點 = 36
• 第4項 判例의 立場 = 37
• 1. 名義에 의한 歸屬의 排除 = 37
• 2. ‘事實上 支配, 管理 및 處分할 수 있는 地位’의 要件 = 38
• 第5項 小結 = 41
• 第2節 外國例 = 43
• 第1項 英國 = 43
• 1. 所得의 歸屬 = 43
• 2. 受益的 所有者 = 44
• 第2項 美國 = 48
• 1. 所得의 歸屬 = 48
• 2. 受益的 所有者 = 51
• 第3項 獨逸 = 52
• 1. 所得의 歸屬 = 52
• 2. 受益的 所有者 = 57
• 第4項 日本 = 57
• 1. 所得의 歸屬 = 57
• 2. 受益的 所有者 = 60
• 第3節 小結 = 60
• 第1項 比較 = 60
• 第2項 分析 = 64
• 1. 經濟的 實質의 重視 = 64
• 2. 目的論的 解釋의 擴散과 그 意味 = 65
• 第4章 租稅條約上 所得의 歸屬 = 67
• 第1節 序論 = 67
• 第1項 解釋의 對象 = 67
• 第2項 解釋의 方法 = 69
• 1. 租稅條約解釋原則 = 69
• 2. 各 類型別 解釋의 可能性 = 84
• 第2節 ‘受領(支給)’ = 86
• 第1項 解釋論 = 86
• 1. 國內稅法上 槪念의 援用 = 86
• 2. 目的論的 解釋 = 88
• 3. 小結 = 88
• 第2項 適用事例 : 導管金融去來 = 90
• 第3項 小結 = 94
• 第3節 受益的 所有 = 96
• 第1項 槪念의 導入 = 96
• 1. 淵源 = 96
• 2. 對象所得의 擴大 = 98
• 3. 우리나라 導入 歷史 = 100
• 第2項 解釋論 = 101
• 1. 우리나라의 事例 = 101
• 2. 外國例 = 103
• 3. 小結 = 125
• 第3項 適用事例 : 投資펀드 = 131
• 1. 投資펀드의 特殊性 = 132
• 2. 우리나라 = 137
• 3. 外國例 = 138
• 第4項 小結 = 150
• 1. 多樣性 = 150
• 2. 目的論的 解釋의 必要性 = 151
• 第4節 特別 規定이 없는 경우 = 153
• 第1項 租稅條約과 國內稅法의 關係 = 154
• 1. 一般條約과 國內法 = 154
• 2. 租稅條約과 國內稅法 = 156
• 第2項 우리의 規定 體系 = 164
• 1. 租稅條約 優先適用 = 165
• 2. 國內稅法原則의 租稅條約 適用 = 168
• 3. 小結 = 176
• 第3項 外國例 = 178
• 1. 英國 = 178
• 2. 美國 = 179
• 3. 캐나다 = 181
• 4. 濠洲 = 185
• 5. 獨逸 = 186
• 6. 日本 = 190
• 7. 프랑스 = 192
• 第4項 適用事例 : 資本利得 = 194
• 1. 資本利得에 受益的 所有者 개념이 없는 이유 = 195
• 2. 資本利得의 歸屬 = 197
• 第5項 小結 = 198
• 1. 目的論的 解釋의 必要性 = 198
• 2. 節次 規定 未備 = 199
• 3. 國租法의 論理的 欠缺 = 203
• 第5節 解釋論과 그 限界 = 204
• 第1項 解釋案의 提示 = 204
• 第2項 解釋論의 限界 = 204
• 第5章 改善方案 = 208
• 第1節 租稅條約의 改正 = 208
• 第1項 租稅條約惠澤制限條項 = 209
• 1. 主體類型別 規定 = 209
• 2. 去來類型別 規定 = 221
• 第2項 國內稅法原則 適用規定 = 225
• 第3項 小結 = 227
• 第2節 國內稅法의 整備 = 228
• 第1項 租稅條約排除條項 = 228
• 1. 槪要 = 228
• 2. 外國例 = 229
• 第2項 租稅條約 解釋 및 適用에 관한 規定 정비 = 232
• 1. 解釋規定 = 232
• 2. 節次規定 = 237
• 第3項 小結 = 241
• 第6章 結論 = 243
• 參考文獻 = 252
• Abstract = 263
• 略字 = 269