‘단체 분류(Entity Classification)’에 관한 대법원 판례와 경제협력개발기구(OECD)의 ‘파트너쉽 보고서(Partnership Report)’의 조화(調和) 가능성에 관한 검토- 해석론과 문제점을 중심으로 - (A Mission Impossible - Is There a Way to Reconcile the New Case Law on Entity Classification in Korea and the OECD Partnership Report?)

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초록

Korea has recently established a new law on the issue of entity classification. The introduction of the new law was first initiated by a number of decisions rendered in 2012 and 2013 by the Supreme Court, and backed up and complemented by an 2013 amendment of the Corporate Income Tax Act. This Article deals with the question of whether the current Korean law after all those changes can be reconciled with the 1999 Partnership Report of the OECD.
In the heart of the new law lies the Supreme Court’s insistence on the method of entity classification provided in the Korean domestic tax law. While the Partnership Report proposed that the source state should take into account how the relevant taxpayers are taxed in their residence states, there is absolutely no trace of such consideration in the aforedaid Supreme Court’s decisions. This Article, thus after having confirmed that the new law and the Report are logically incompatible, attempts to suggest, based on the new law, a way of treaty interpretation that the Author believes would bear the least theoretical and practical difficulties.
It should be added that, because the issue of entity classification had not been anticipated at the time the concept of income tax treaty initially came into existence, the ultimate remedy should come through amendment of each particular tax treaty.

영어초록

Korea has recently established a new law on the issue of entity classification. The introduction of the new law was first initiated by a number of decisions rendered in 2012 and 2013 by the Supreme Court, and backed up and complemented by an 2013 amendment of the Corporate Income Tax Act. This Article deals with the question of whether the current Korean law after all those changes can be reconciled with the 1999 Partnership Report of the OECD.
In the heart of the new law lies the Supreme Court’s insistence on the method of entity classification provided in the Korean domestic tax law. While the Partnership Report proposed that the source state should take into account how the relevant taxpayers are taxed in their residence states, there is absolutely no trace of such consideration in the aforedaid Supreme Court’s decisions. This Article, thus after having confirmed that the new law and the Report are logically incompatible, attempts to suggest, based on the new law, a way of treaty interpretation that the Author believes would bear the least theoretical and practical difficulties.
It should be added that, because the issue of entity classification had not been anticipated at the time the concept of income tax treaty initially came into existence, the ultimate remedy should come through amendment of each particular tax treaty.

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