이 글은 조세 조약상 거주자로서 조약상 혜택을 적용받기 위한 요건으로서 실질과세라는 일반원칙, 조약상 수익적 소유자(beneficial owner) 개념 및 이른바 조약혜택배제 규정의 세 가지 기준에 관하여 국제조세의 맥락에서 살펴보는 것을 목적으로 한다.
이 글의 주요 논지로는,먼저, 나라마다 입법례와 판례가 다르기는 하지만 조세조약의 해석·적용에도 실질과세를 적용할 수 있다는 것이 현재의 국제적 대세이며, 최근의 우리나라 대법원판례 또한 이러한 태도를 취한 바 있다. 원천징수의무자의 조세조약 적용절차에 관한 새로운 규정(법인세법 제98조의6)은 실질귀속자의 판정기준을 따로 정한 것이 아니고 이 판정은 실질과세라는 일반적 원칙에 따를 수밖에 없다.
다음으로, 조약적용 시 국내 세법상 일반적 남용방지 규정에 따라 실질귀속자를 판단하는 경우 조약상 beneficial owner 개념은 구태여 검토할 독자적 의의가 없고, 이 말에 기대어 조약적용을 거부할 필요가 없다. 왜냐하면, 조세 조약상 수익적 소유자 개념이 없는 조문에서도 실질귀속자만이 조약을 적용받을 수 있고, 수익적 소유자가 있는 조문이라면 그 말은 실질귀속자라는 말과 똑같은 뜻의 조약편승 대책일 뿐이던가, 아니면 조세조약 해석상의 국제적 대세를 따른다면 조약적용을 거부할 수 있는 외연이 실질귀속자보다 훨씬 좁은 개념이기 때문이다.
마지막으로, 조세 조약상 LOB 조항은 조세조약망이 좁다는 미국의 입장을 반영한 것일 뿐이고, 우리나라처럼 넓은 조약망을 갖춘 나라는 이를 따를 이유가 없다. 나아가 미국이 주창하는 식의 LOB 조항은 유럽법과 충돌한다는 문제 때문에 장차 그대로 살아남기 어려울 것이다.
There are 3-pronged tests for foreign corporation to benefit from the tax treaties as a resident of the other contracting state: 1) the domestic general anti-abuse rule(GAAR) such as the substance over form doctrine; 2) the concept of ‘beneficial owner’ under the tax treaties; and 3) the limitation of benefit (LOB) clause. This paper is to review each of them in the context of international taxation, and the main themes are as the following. Although there are still some differences from state to state, the mainstream opinion on international taxation seems to be that domestic GAAR could be applied to the interpretation of the tax treaties. The same result was also affirmed in recent Korean Supreme Court Decisions. The newly introduced clause in the Korean Corporate Income Tax Act regarding the withholding procedure for the payment of domestic source income shall not be deemed as a criterion for the determination of the actual owner (or the beneficial owner under the tax treaties) which shall be ultimately done according to the domestic GAAR by each jurisdiction. The concept of the ‘beneficial owner’ under the tax treaties is of no significance in reality, as long as each state takes the mainstream idea on the application of GAAR to the interpretation of tax treaties as stated above. This is mainly because only the actual owner under the GAAR deserves the treaty benefits even in cases to which the ‘beneficial owner’ concept is not applied, e.g. the capital gains. In other words, as a reasoning for disallowing the treaty benefits in a source state, the sphere of the beneficial owner is narrower than that of the actual owner. The LOB clause, which mainly appears in the tax treaties entered into by the United States, is merely the outcome of the international politics, through which the United States pursues a more extended treaty network. As a result, it broadens the scope of ‘treaty abuse’ beyond the well-established limit of treaty shopping in the international taxation regime. Thus, Korea has no imperative policy-wise reason to follow the LOB clause in its treaties. It's also noteworthy that the potential conflict between the LOB clause and EU laws might be also a restraint of its spread.
There are 3-pronged tests for foreign corporation to benefit from the tax treaties as a resident of the other contracting state: 1) the domestic general anti-abuse rule(GAAR) such as the substance over form doctrine; 2) the concept of ‘beneficial owner’ under the tax treaties; and 3) the limitation of benefit (LOB) clause. This paper is to review each of them in the context of international taxation, and the main themes are as the following. Although there are still some differences from state to state, the mainstream opinion on international taxation seems to be that domestic GAAR could be applied to the interpretation of the tax treaties. The same result was also affirmed in recent Korean Supreme Court Decisions. The newly introduced clause in the Korean Corporate Income Tax Act regarding the withholding procedure for the payment of domestic source income shall not be deemed as a criterion for the determination of the actual owner (or the beneficial owner under the tax treaties) which shall be ultimately done according to the domestic GAAR by each jurisdiction. The concept of the ‘beneficial owner’ under the tax treaties is of no significance in reality, as long as each state takes the mainstream idea on the application of GAAR to the interpretation of tax treaties as stated above. This is mainly because only the actual owner under the GAAR deserves the treaty benefits even in cases to which the ‘beneficial owner’ concept is not applied, e.g. the capital gains. In other words, as a reasoning for disallowing the treaty benefits in a source state, the sphere of the beneficial owner is narrower than that of the actual owner. The LOB clause, which mainly appears in the tax treaties entered into by the United States, is merely the outcome of the international politics, through which the United States pursues a more extended treaty network. As a result, it broadens the scope of ‘treaty abuse’ beyond the well-established limit of treaty shopping in the international taxation regime. Thus, Korea has no imperative policy-wise reason to follow the LOB clause in its treaties. It's also noteworthy that the potential conflict between the LOB clause and EU laws might be also a restraint of its spread.
