수동적 동업자와 고정사업장

다국어 초록 (Multilingual Abstract)

In this article, we have discussed and proposed alternatives for the taxation of partnership whose partners are both (ⅰ) non-resident or foreign entities and (ⅱ) passive partners under the current partnership taxation rules of the Special Tax Treatment Control Act. The current rules provide, where a partnership has a permanent establishment (“PE”) in Korea, that a partner who is not a passive partner is to be regarded as also having a PE in Korea, while a passive partner is to be regarded as having no PE in Korea. As such, taxation on each passive partner is completed through an income tax withholding on a gross revenue allocated by and received from the partnership.
Under the partnership taxation rules, a partnership is to be regarded as a non-resident or a foreign corporation when calculating the amount of income allocated to its non-resident or foreign corporation partners. Currently, there is no clear provision under the Korean tax law stipulating the method of calculating the amount of income allocated to passive partners for which two contrasting views may exist.
One view is that the income of partnerships should be calculated in aggregate, taking into account all the revenue earned and expenses incurred by the partnership considering the fact that the partnership has a PE in Korea. This approach is problematic in that such aggregate income calculation method conceptually does not go well with a separate withholding taxation method and also in that neutrality in taxation may not be secured because different tax effects would result under this view compared with the cases where such partners operates their businesses individually.
Another view is that the income of the partnership allocated to its passive partners should be considered and calculated separately by type of income generated at the partnership level as long as passive partners are regarded as not having a PE in Korea. This view may seem reasonable in that taxation on passive partners are completed through an separate income tax withholding rather than normal tax filings which considers all the Korean source revenue and expenses attributable to a PE in Korea. However, in that the income of passive partners and that of non-passive partners should be calculated separately and differently, this view does not match with the current partnership taxation rules which provide no difference between passive partners and non-passive partners in the calculation of the partnership income allocated to non-resident partners or foreign corporation partners.
Both of the above views would raise issues, and the selection between these two would be a matter of policy. However, in case where a partnership income allocated to passive partners is calculated in aggregate taking into account all the revenue earned and expenses incurred by the partnership, the passive partner should, in principle, be taxed in the same way as non-passive partners who has a PE in Korea in connection with the partnership. On the other hand, to tax the passive partners through a separate withholding taxation, calculation method of the partnership income allocated to passive partners shall be designed in line with the separate withholding taxation system.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 외국인인 수동적 동업자에 대한 과세의 개요
• Ⅲ. 외국인인 수동적 동업자에 대한 현행 과세제도의 문제점과 개선방안
• Ⅳ. 결론
• 〈參考文獻〉
• 〈Abstract〉

참고문헌 (Reference)

1 김진수, "파트너십 제도에 관한 연구" 한국조세연구원 2000

2 박훈, "파트너십 과세제도 도입에 대비한 공동사업과세의 개선방안―민법상 조합을 중심으로―" 한국세무학회 2007

3 안종석, "파트너십 과세제도 도입방안" 한국조세연구원 2007

4 재정경제부 TF팀, "파트너십 과세제도 TF 논의결과" 한국조세연구원 2007

5 김재진, "파트너십 과세제도" 한국조세연구원 2004

6 이은미, "조합의 과세에 관한 연구" 한양대학교 대학원 2007

7 이준규, "조세특례제한법상 동업기업 과세특례제도의타당성에 관한 연구" 한국세법학회 14 (14): 51-98, 2008

8 이준규, "세법개론" (주)영화조세통람 2009

9 이철송, "상법강의" 박영사 2009

10 이준규, "법인에 대한 도관과세의 문제점과 개선방안" 한국세무학회 9 (9): 9-27, 2008

11 이준규, "미국의 파트너십 과세제도" 한국조세연구원 2007

12 이준규, "동업기업에의 출자와 관련한 과세상의 쟁점" 한국세법학회 14 (14): 128-161, 2008

13 김인근, "국제조세의 이론과 실무" (주)광교TNS 2001

14 OECD, "The Application of the OECD Model Tax Convention to Partnerships, in Issues in Internation Taxation No. 6"

15 Lind, Stephen A., "Fundamentals of Partnership Taxation" Foundation Press 2005

16 Burke, Karen C., "Federal Income Taxation of Partners and Partnerships, 3rd ed" 2005