FTA시대의 과세상 거주자 개념

Abstract

In this study authors made research into the origin of the term 'resident' in the Korean income tax law and in-depth analysis of its conceptual components. The historic circumstances of each country, from which Korea imported tax law systems, reflected in the build-up and interpretation of the 'resident' concept in each country’s tax laws, which accordingly resulted in significant variations. Basically the concept of 'resident' is a fundamental tool concept used for the allocation of taxable objects among tax sovereignties. Now it seems that we are on the way towards gradual integration of national sovereignties, one of which symptoms we may find in the phenomenal free trade agreements. Against these trends, we may legitimately try to reconsider the role of the resident 'concept'. If the fiscal integration among nations reach such a level as we may find in the states belonging to the same federal government, the source approach may be adopted and the 'resident' concept lose its importance eventually. However, the current situation in each sovereignty shows prevalence of the residence approach over the source approach, which generally do not go well with the hectic economic activities of private businesses across borders. In this regard, the authors suggest that the provision on 'resident' concept in the Korean income tax law have to be amended as follows. Firstly, 'home(jugeo)' concept has to be used instead of 'permanent address(juso)' as a key component of the 'resident' concept. This will eliminate the uncertainty from the concepts 'occupation', 'family' and 'property' which comprises the 'resident' concept under the current income tax law. Secondly, the 'half year rule' has to be introduced instead of 'abode(geoso)' concept, which requires apparently one year stay in Korea. The provision of current one year rule produces not a few legal conflicts due to its ambiguity. Many practitioners believe even a stay less than a half year will cause a foreigner to be regarded a resident in Korea. A simple half year stay rule will improve the income tax law in terms of enhancing certainty as well as preventing anti-avoidance.