Since South Korea’s accession to the OECD in 1996, the volume of international transactions by individuals and corporations has grown exponentially compared to the early stages of membership. Meanwhile, from the perspective of tax authorities, excha...
Since South Korea’s accession to the OECD in 1996, the volume of international transactions by individuals and corporations has grown exponentially compared to the early stages of membership. Meanwhile, from the perspective of tax authorities, exchange of information with foreign tax authorities regarding foreign-sourced income and investment activities is essential for fair taxation on offshore income. However, the lack of cooperative frameworks and the difficulty in expecting voluntary reporting from taxpayers create practical limitations in grasping the realities of offshore outbound income or foreign-sourced local income. These information asymmetries and structural limitations have become a major driver for individuals and corporations to attempt tax avoidance through offshore transactions.
Recent press releases from the National Tax Service (NTS) highlight major cases of offshore tax evasion, such as high-net-worth individuals or owners of small and medium-sized enterprises disguising themselves as non-residents by changing nationalities and adjusting the number of days stayed, establishing paper companies with no business substance in tax havens, and concealing foreign income using new financial instruments such as foreign trusts and virtual assets.
Accordingly, this study examines the major types of domestic offshore tax evasion from 2017 to 2024—following the implementation of the OECD BEPS and FATCA—based on NTS press releases. These cases are categorized into three major types: disguising as non-residents, utilizing entities established in tax havens, and using foreign trusts or foreign funds. The study then analyzes the current institutional frameworks designed to prevent these three types of offshore tax evasion and their respective problems as follows.
First, under the current Income Tax Act, the concept of "domicile" among the definitions of a resident remains ambiguous, causing disputes between taxpayers and tax authorities in determining residency status, and court rulings remain inconsistent even for similar cases. Second, although regulations on the principle of substance-over-form taxation are in place to prevent the retention of income abroad by establishing insubstantial entities in tax havens, the criteria for such determination lack consistency. Third, to prevent the concealment of foreign income through investments in offshore financial instruments and foreign real estate, the law mandates the reporting of foreign financial accounts and the submission of foreign trust statements. However, if a taxpayer defaults on this obligation, only penalty provisions apply, and there are no separate provisions to grant benefits for faithful reporting, thereby lacking incentives to induce voluntary compliance. Furthermore, the current system supplements the taxation framework through ex-post legislation whenever new investment instruments emerge, creating legislative vacuums until the laws are enacted.
To address these issues, this study proposes several solutions. First, it is necessary to redefine the concept and criteria of a resident under the Income Tax Act by partially adopting the "step-by-step numerical model" based on the UK’s Statutory Residence Test (SRT) and Canada’s "advance residency determination" model. Second, criteria for determining whether an entity established in a tax haven is operating a real business with a "legitimate business purpose" must be concretely specified in the statutes. Third, to induce voluntary compliance from taxpayers, Korea should refer to Japan's Overseas Property Report system, which provides benefits to those who faithfully submit data on offshore tax sources—such as real estate and financial assets located abroad—within the deadline. In addition, to prevent taxation gaps concerning various investment instruments developed as tax-saving methods, Korea should partially adopt the reportable tax avoidance transaction systems of the US or the UK. This would allow tax authorities to prescribe tax requirements for new financial instruments in the statutes before their design schemes are distributed in the market, thereby eliminating taxation blind spots.
Ultimately, these institutional improvements are expected to go beyond merely preventing tax revenue leakage; they will serve as a foundation for establishing a fair international tax environment that enhances the legal predictability for taxpayers and realizes tax justice.