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(영문) 대법원 2015.03.26 2013두7711

법인세부과처분취소

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The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. Article 2(1)2, etc. of the former Corporate Tax Act (amended by Act No. 9267, Dec. 26, 2008; hereinafter the same) provides that a foreign corporation is liable to pay corporate tax only when there is a domestic source income with respect to the foreign corporation. Articles 2(5) and 98(1) provide that a person who pays a foreign corporation the amount of certain domestic source income, such as Article 93 subparag. 9, shall withhold the relevant corporate tax. Articles 93 subparag. 2 and 98(1)3 provide that the withholding tax rate for the dividend income that is the domestic source income of the foreign corporation shall be 25%.

Meanwhile, Article 10(1) of the Agreement between the Republic of Korea and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital (hereinafter “Korea- Germany Tax Treaty”) provides that “The dividends paid by a corporation which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other Contracting State,” and Article 10(2) provides that “However, with respect to such dividends, the corporation which pays the dividends may also be taxed in the Contracting State, which is a resident, in accordance with the laws of that State: Provided, That if the beneficial owner of the dividends is a resident of the other Contracting State, the tax imposed shall not exceed the following: (a) Item (b) provides that “5% of the total amount of dividends shall not exceed the amount of taxes imposed if the beneficial owner of the dividends is a corporation (excluding a partnership) which directly holds at least 25% of the

B. citing the reasoning of the judgment of the court of first instance, the lower court cited the reasoning of the judgment, and ① Company B, a limited partnership company in Germany, (hereinafter “B”) on January 203.