[Abstract]

Problems of Recent Supreme Court’s Cases on Foreign Investment Funds Found through the Analysis on Tax Treaty Application Rules 

Lee, Kyung Geun 

 The Supreme Court has repeatedly taken clear positions in recent decisions regarding limited partnerships that conduct their business as investment funds established in a foreign country. In these decisions, the Supreme Court held as the following：(ⅰ) because investment holding companies established in Belgium, Netherlands, and Labuan (among others) have been established for tax avoidance purpose, the dividends or capital gains at issue are not substantively attributable to these investment holding companies；(ⅱ) where an investment fund (limited partnership) is established for a legitimate business purpose to manage its investments without a tax avoidance purpose, such fund may be the substantive owner (or beneficial owner) of the income at issue；and (ⅲ) if the investment fund may be considered as an independent entity (i.e., a corporation), the investment fund should be treated as a foreign corporation subject to withholding provisions in Korean Corporate Income Tax Law. Although the significance of such Supreme Court decisions may be found in that the decisions set forth clear standards for applying Korean tax law to limited partnerships, they contain the problem that the decisions do not provide clear holdings on the applicability of tax treaties to the partners (i.e., members of the limited partnerships) where the residence countries of the partners have entered into tax treaties with Korea. In order to avoid conflict between Korean tax authoritie’s administrative practice and tax treaties (or international law) in connection with taxation of foreign investment funds, it is necessary for Korean tax authorities and the Supreme Court to reach decisions that accord with purpose of tax treaties and the OECD’s guidance on taxation where the partner of the foreign investment fund (or partnership) is a resident of a country that has concluded a tax treaty with Korea.

 This study reviewed the guidance of partnership taxation included in some tax treaties and the Commentary of the OECD Model Tax Treaty, and applied such guidance to recent decisions made by Supreme Court, and finally analysed its consequences. It is expected that this study can contribute to enhance the consistency between future direction of our Court decisions and international tax guidance established by the OECD. 

▶ Key Words：investment funds, substantive owner, beneficial owner, withholding tax, tax treaty

** Published on December 2013
** Full article available in Korean only
** Download here → 4-1 Problems of Recent Supreme Court’s Cases on Foreign Investment Funds Found through the Analysis