외국계 펀드에 대한 원천지국 과세

국문 초록 (Abstract)

론스타펀드에 관한 판결은 국내에서 큰 반향을 불러 일으켰다. 1990년대 이후부터 이어진 외국계 투자 펀드의 국내 투자는, 위 론스타펀드에 대한 법적 판단이 이루어지는 계기가 되며 여론의 큰 주목을 받았다.
투자 펀드는 집합투자기구의 하나로 투자자가 자산을 투자하여 발생한 수익을 지급받기 위한 매개가 되는 자산의 집합체이다. 투자펀드는 법적 형태에 따라 회사형, 신탁형, 조합형 펀드로 분류할 수 있고, 펀드의 설립지·투자지역·투자자 등에 따라 국내펀드와 국제펀드로 분류할 수 있다. 이하의 글에서는 국외 투자자들이 국외에서 설립하여 국내에서 투자 활동을 펼치는 펀드를 ‘외국계 투자 펀드’로 지칭하고 그에 관한 논의를 전개하였다.
투자 펀드의 과세방식에 대하여는 Entity taxation, Pay through
taxation, Pass through taxation로 분류할 수 있고, 국내법 상 회사형 펀드의 경우 Entity taxation, 조합형·신탁형 펀드의 경우 Pass through taxation의 과세 방식을 취하고 있다.
외국계 투자 펀드 역시 ‘인(人)’으로서 거주자(resident) 및 수익적 소유자(beneficial owner)에 해당한다면 조세조약이 적용될 수 있다. 우선적으로 외국계 투자 펀드와 단체 분류(Entity Classification)의 문제로서 국내에서 론스타 펀드Ⅲ이 법인으로 법인세를 부담하는지 아니면 투자자들이 소득세를 부담하는지 여부가 쟁점이 된 대법원 판례를 검토하였다. 외국계 투자 펀드의 거주자 판단과 관련하여서는 거주자의 개념을 살펴본 후 신탁형·회사형·조합형 펀드의 경우를 나누어 검토하였다. 외국계 투자 펀드의 수익적 소유자 판단과 관련하여서는 그
개념 및 연혁을 살피고 최근 대법원 판결을 검토하였다. 다만, 위 대법
원 판결은 전통적으로 OECD 모델조세조약에서 읽혀지는 수익적 소유
자의 개념에 맞지 않는 측면이 있음을 지적하였다.
외국계 투자 펀드에 대한 원천지국 과세와 관련하여 우선적으로 외국
계 투자 펀드가 투자 활동을 통하여 이자·배당·양도 소득 등을 창출
함을 지적한 후, 특수한 문제로서 고정사업장 문제를 다루었다. 일반적인 의미에서의 고정사업장의 의미를 검토한 후, 외국계 투자 펀드의 고정사업장에서는 주로 대리인에 의한 고정사업장 인정 여부가 쟁점이 됨을 설명하고 OECD 모델조세조약에서 마련하고 있는 대리인에 의한 고정사업장 규정이 외국계 투자 펀드의 어떠한 상황을 포착하고자 하는지 검토하여, 대리인과 펀드의 각 활동에 따라 대리인의 종속성, 계약체결대리인에 해당하는지 여부, 대리인의 활동이 예비적·보조적인지 여부를 검토하여 외국계 투자 펀드의 대리인에 고정사업장의 지위를 인정하기는 어렵다는 결론을 도출하였다.

목차 (Table of Contents)

• 제 1 장 서론 ·····························································1
• 제 2 장 투자펀드의 개념 ········································3
• 제 1 절 투자펀드의 의의 ·····················································3
• 제 2 절 투자펀드의 특성 ·····················································4
• 제 3 절 투자펀드의 분류·구조 및 현황 ·························· 5
• 1. 투자펀드의 분류···································································5
• 가. 법적형태에 따른 분류·····················································7
• (1) 회사형 펀드·······························································7
• (2) 신탁형 펀드·······························································7
• (3) 조합형 펀드·······························································8
• 나. 설립지, 투자지역, 투자자 등에 따른 분류················· 8
• 2. 외국계 투자 펀드의 구조···················································9
• 3. 외국계 투자 펀드의 현황···················································9
• 제 4 절 연구의 범위 ·····························································10
• 제 3 장 투자펀드에 대한 세법상 취급 ··············· 11
• 제 1 절 일반론 ·······································································11
• 1. “Entity taxation” 접근법····················································11
• 2. “Pay through taxation” 접근법 ········································11
• 3. “Pass through taxation” 접근법······································12
• 제 2 절 국내법상 투자펀드에 대한 과세 ······················· 12
• 1. 회사형 펀드: 원칙적으로 Entity taxation ······················12
• 가. 펀드 단계···········································································12
• 나. 투자자 단계·······································································13
• 2. 신탁형 펀드: Pass-through taxation ································14
• 가. 펀드 단계···········································································14
• 나. 투자자 단계·······································································15
• (1) 적격요건을 갖춘 경우 ·············································15
• (2) 적격요건을 갖추지 않은 경우·······························15
• 3. 조합형 펀드: Pass-through taxation ································15
• 가. 펀드 단계···········································································15
• 나. 투자자 단계·······································································16
• (1) 적격요건을 갖춘 경우 ·············································16
• (2) 적격요건을 갖추지 않은 경우·······························16
• 4. 투자펀드에 대한 과세 형태·················································16
• 제 4 장 외국계 투자 펀드에 대한 조세조약의 적용 ···· 17
• 제 1 절 서설 ············································································17
• 제 2 절 외국계 투자 펀드의 인(人) 판단 ······················ 18
• 1. ‘인(人)’의 개념 ········································································18
• 2. 외국계 투자 펀드에 대한 인(人)의 판단··························19
• 3. 외국계 투자 펀드와 과세 분류의 문제·····························19
• 가. 서설·····················································································19
• 나. 가능한 접근 방법·····························································20
• 다. 국내 판례: 대법원 2010두5950 판결 ····························22
• (1) 사실관계·····································································22
• (2) 쟁점 ·············································································23
• (3) 판단 ·············································································23
• 라. 해외 동향···········································································24
• 마. 소결론·················································································25
• 제 3 절 외국계 투자 펀드의 거주자(resident) 판단 ·· 27
• 1. ‘거주자(resident)’의 개념 ······················································27
• 2. 외국계 투자 펀드에 대한 거주자 판단·····························29
• 가. 신탁형 펀드·······································································29
• 나. 회사형 펀드·······································································29
• 다. 조합형 펀드·······································································29
• 제 4 절 외국계 투자 펀드의 수익적 소유자 판단 ······· 32
• 1. ‘수익적 소유자(Beneficial Owner)’의 개념 및 연혁 ······ 32
• 가. OECD 모델조세조약의 규정··········································32
• 나. 수익적 소유자 개념의 연혁···········································33
• 2. 외국계 투자 펀드에 대한 수익적 소유자 판단···············34
• 가. OECD 모델조세조약 주석서··········································34
• (1) 제10조 제2문단, 12 및 12.1 ·································34
• (2) 제1조 6.14 및 6.15 ···················································35
• 나. 외국계 투자 펀드에 대한 적용 ·····································36
• 3. 국내 판례: 대법원 2010두25466판결··································37
• 가. 사실관계 ·············································································37
• 나. 쟁점·····················································································38
• 다. 판단·····················································································38
• 4. 소결론·······················································································38
• 가. 대법원 2010두25466판결에 대한 분석·························39
• 나. OECD 모델조세조약의 태도 및 국내실무와의 상충 39
• 제 5 절 소결론 ·······································································41
• 제 5 장 외국계 투자 펀드에 대한 원천지국 과세 ·· 42
• 제 1 절 서설 ············································································42
• 제 2 절 외국계 투자 펀드의 소득유형 ····························43
• 1. 이자소득 ···················································································43
• 2. 배당소득 ···················································································43
• 3. 양도소득 ···················································································44
• 4. 사업소득 ···················································································45
• 제 3 절 외국계 투자 펀드의 고정사업장 인정 여부 ···46
• 1. 서설 ·····························································································46
• 가. 외국계 투자 펀드와 고정사업장의 문제·····················46
• 나. 수동적 소득에 대한 고정사업장 과세 ·························47
• 다. 쟁점·····················································································48
• 2. 고정사업장의 개념···································································48
• 가. 원래 의미의 고정사업장·················································48
• (1) OECD 모델조세조약의 규정 ·······························48
• (2) 국내법의 규정···························································50
• 나. 대리인에 의한 고정사업장 ·············································50
• (1) OECD 모델조세조약의 규정 ·······························50
• (2) 국내법의 규정···························································51
• (3) 해석론·········································································52
• 3. 외국계 투자 펀드의 고정사업장 인정 여부 ···················· 56
• 가. 서설······················································································56
• (1) 외국계 투자 펀드의 전형적인 상황 ···················56
• (2) 대리인 고정사업장 규정이 포착하고자 하는 상황 ···· 57
• 나. 고정사업장 인정여부에 관한 가능한 해석 ·················· 58
• (1) 고정사업장을 인정하는 해석 ·······························58
• (2) 고정사업장을 부정하는 해석 ·································59
• 다. 외국계 투자 펀드의 고정사업장에 관한 검토············60
• (1) 종속대리인에 관한 판단 ·······································60
• (2) 예비적·보조적 활동에 관한 판단 ······················· 66
• (3) 소결론 ·······································································69
• 4. 국내 판례: 행정법원 판례 ·················································70
• 가. 사실관계 ··············································································70
• 나. 쟁점······················································································71
• 다. 법원의 판단········································································71
• 5. 해외 동향 ··············································································72
• 가. 호주······················································································72
• 나. 일본······················································································73
• 다. 영국······················································································74
• 6. 소결론 ····················································································75
• 제 8 장 결론 ································································76
• 제 1 절 연구의 요약 ·····························································76
• 제 2 절 향후의 과제 ·····························································78
• 참고문헌 ········································································80
• Abstract ········································································83