Tax Treaty is a production by mutual consent to solve various problems such as double taxation and tax evasion that arise between the countries concerned with international transactions. The Korea-China tax treaty, since its conclusion in 1994, has pl...
Tax Treaty is a production by mutual consent to solve various problems such as double taxation and tax evasion that arise between the countries concerned with international transactions. The Korea-China tax treaty, since its conclusion in 1994, has played an important role in the promotion of personal and physical exchanges.
During the past 15 years, domestic situations in Korea and China have experienced lots of changes, and the interests between Korea and China have changed much when compared with those at the time of concluding the treaty.
The tax treaty policy should be promoted on time to meet the changing economic and social situations. The tax treaty requires strong support in order for the personal and physical interchanges to be smoother. From this point of view, this study tries to find neutrality of investment, freedom of trade, and equilibrium of division of the taxation right of the two counties.
In the first place, this study analyses the changes of the domestic situations and the new interests of the two countries such as the two countries’ tax law amendments and economic situations, and while it points out that the provisions regarding the personal and physical interchanges in the Korea and China tax treaty do not in harmony with the reality, it proposes desirable amendment alternatives for them.
In this course, the new policies in 「OECD Model Tax Treaty」 and 「UN Model Tax Treaty」 and some newly signed(amended) tax treaties between the two nations in the past few years. In consideration of the main purposes of the tax treaties to eliminate the obstacles in the exchanges between the nations by removing the double taxation, it emphasizes the equal taxation right and the residence principle rather than the taxation right of the state of source.
For promotion of the personal interchanges and, it also suggests introduction of the actual management organizations as the yardstick for judging the dual residence’s living country. At the same time, it proposes the necessity to grant a resident status in the treaty to the partnership and to stipulate a taxation clause in the treaty on the partnership of international investment.
There are no clear provisions in the treaty whether the tax on the company’s personal service should be imposed as business profits or independent personal service. And, as there are some discords in the stipulations of the Korean and Chinese domestic tax laws, this paper suggests to settle disputes in the field with a suggestion to revise the treaty so that it can limit the independent personal service to the individuals. Then, this study reviews the tax problem of independent personal service offered by partnership.
It suggests a measure to concede taxation right of the state of source for promotion of dependent personal interchanges between the two countries with a proposal to clearly stipulate the scope of incomes of the dependent personal service.
At the same time, it suggests introduction of the principle of real taxation in conducting the taxation right in the state of source with regard to entertainers in the two countries. The issue of taxation on pension with the increase of the emigrants between Korea and China is also one thing to be reviewed in the two countries’ tax treaty. It proposes to divide the taxation right more evenly between the paying country and receiving country of the pension. At the sametime, various treaties remain to be improved for prevention of tax evasion from making bad use of the treaties.
As for the physical interchanges, it discusses the fixed place of business, the imputed income and investment incomes. For expansion of physical exchanges, it claims stipulating more clearly the scope of the fixed place of businesses with regard to the business incomes. As a measure to prevent tax evasion, provisions on the preparatory or auxiliary activities and full-scale activities should be stipulated. It reviews the establishment of the fixed place of business of the subsidiary companies and insurance agents.
This paper advocates the necessity to continuously promote the provision revision on the overseas related parties and the bilateral advanced pricing agreement to avoid the tax feuds in calculation of imputed incomes of the business profits and transfer prices. In this study, it reviews the possibility of adopting formula apportionment approach to overcome the fatal drawback of the separate entity approach that has been used until now for calculation of normal prices of the imputed incomes and transfer prices.
It is necessary to activate the capital investment of the two countries by reducing the tax rate caps of the dividend, interest, royalty in each state of source. The study presents a method for promotion of exchanges that applies different tax rate caps in the country where the interest and dividend accrue. At the same time, it also supports the opinion to improve the provision on beneficial owners as a measure to prevent tax evasion.
Regarding the efficient tax administration service, it discusses the regulations on avoidance of double taxation, evasion of taxes and prevention of tax evasion. There are lots of opinions to abolish the oversea tax sparing credit to activate the investment neutrality and exchanges but considering the importance of the close Chinese and Korean exchange, this paper suggests that it should retain the system.
From the side of protecting the right of taxpayers, it is necessary to set up a "No fault No penalty Rule". In addition to this, it is emphasized to efficiently operate the cooperation among the countries by improving(newly stipulating) regulations on information exchanges in the tax treaty, simultaneous tax audit, cooperation in collection and principle of real taxation to punish the malicious taxpayers. It would be a good measure to set up a guideline for information exchange and Korea-China cooperation.
Some issues such as overseas gift and inheritance that a