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KCI 등재

조세조약상 수익적소유자와 국내세법상 실질귀속자와의 관계

Relationship between “beneficial owner” under the tax treaties and “real owner” under the domestic tax laws

조세학술논집
약어 : -
2013 vol.29, no.1, pp.177 - 212
DOI : 10.17324/ifakjl.29.1.201302.006
발행기관 : 한국국제조세협회
연구분야 : 법학
Copyright © 한국국제조세협회
김석환 1

1강원대학교

262 회 열람

The purpose of this study is to review: i) what the meaning of beneficial owner is in the context of the international taxation; ii) whether the actual assessment rule under the domestic tax laws is applicable to the interpretation of the tax treaties; and iii) whether the elements of the beneficial owner under the tax treaties are identical to those of the actual owner under the actual assessment rule. Based upon the review, this study seeks for the appropriate solution for the emerging cases relating to beneficial owner at courts and administrative tax panels in Korea. To sum up of this study, this paper first opines that the actual assessment rule under the Korean domestic tax laws is applicable to the interpretation of the tax treaties largely based upon the context of international taxation such as the Commentaries for OECD Model Convention, scholars and court decisions in various countries. In addition, it concludes that the meaning of the beneficial owner might be interpreted in the same way of the actual owner under the actual assessment rule, i.e. Korean GAAR(General Anti-Abuse Rule), mainly because: i) the common purpose of both doctrines is to prevent the taxpayers from abusing the loopholes of the tax law provisions such as treaty shopping via tax haven; ii) most courts in the OECD Member States recognize the applicability of the GAAR in the interpretation of the beneficial owner under the tax treaties; and iii) the recent OECD publication also supports such interpretation, thus there is no compulsory reason to apply both doctrines in a different way. In this regard, the recent ruling of Korean Supreme Court supporting the above view looks appropriate.

수익적소유자, 실질과세원칙, 실질귀속자, 조약편승, 일반적 남용방지규정
beneficial owner, substance over form doctrine, treaty shopping, general anti-avoidance rule

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