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초록·키워드
The Supreme Court (hereinafter the "Court") decision 93 nu 13162 (rendered on April 15, 1994) is about a case where a corporation (hereinafter the "Corporation") established in Hong Kong moved its office to the Netherlands. In this decision, however, the Court decided that the Corporation was not a resident in the Netherlands as defined under the Korea - Netherlands Tax Treaty (hereinafter the "Treaty") on grounds that its place of effective management was not located in the Netherlands. This decision is one of the rare cases where the Court actually dealt with interpretation of tax treaty and probably the first and only case thus far where the Court issued an opinion on a transaction that could be called "treaty shopping." In addition, the Court imposed on the taxpayer the burden of proof as to its eligibility to treaty benefits, which is an exception to the general rule that the burden of proof in a tax litigation is in principle on the tax authorities, and ruled that, in this case, the appellant did not sufficiently fulfill its burden of proof.
In the opinion, this decision accurately confirmed one of the basic principles regarding the interpretation of tax treaties, that the provisions of the Dutch domestic tax law is the controlling criteria as to the residence requirement which is the very first test for anyone to be eligible for treaty benefits. Accordingly, the Court stated that the Dutch domestic tax law consider any corporation with its place of effective management as being resided in the Netherlands. The Court then interpreted the term "place of effective management" as the place where its substantial business operation is conducted and its management decisions are made. However, it was erroneous for the Court to raise such irrelevant facts that the Corporation had no fixed office or employee, or that the amount of the directors' fees were very small to support its decision. Nevertheless, we can easily understand that it would have been difficult for the Court to decide otherwise in this case, where the Dutch Ministry of Finance had never replied to the inquiry made by the Korean National Tax Service as to whether the Corporation was indeed a Dutch resident.
As to the issue of burden of proof, it also seems plausible to put it on the side of taxpayer when treaty benefits are at stake, because here it is clear that the relevant evidences are usually under the control of the taxpayers rather than the tax authorities. However, we should note that it may be too harsh a conclusion to put the obligation to pay the tax on the withholding agent when it had no means to easily identify whether it had any such obligation at the moment of payment and when the transaction has already been closed and it has fulfilled its contractual obligation to make the payment long before the tax assessment.
In the opinion, this decision accurately confirmed one of the basic principles regarding the interpretation of tax treaties, that the provisions of the Dutch domestic tax law is the controlling criteria as to the residence requirement which is the very first test for anyone to be eligible for treaty benefits. Accordingly, the Court stated that the Dutch domestic tax law consider any corporation with its place of effective management as being resided in the Netherlands. The Court then interpreted the term "place of effective management" as the place where its substantial business operation is conducted and its management decisions are made. However, it was erroneous for the Court to raise such irrelevant facts that the Corporation had no fixed office or employee, or that the amount of the directors' fees were very small to support its decision. Nevertheless, we can easily understand that it would have been difficult for the Court to decide otherwise in this case, where the Dutch Ministry of Finance had never replied to the inquiry made by the Korean National Tax Service as to whether the Corporation was indeed a Dutch resident.
As to the issue of burden of proof, it also seems plausible to put it on the side of taxpayer when treaty benefits are at stake, because here it is clear that the relevant evidences are usually under the control of the taxpayers rather than the tax authorities. However, we should note that it may be too harsh a conclusion to put the obligation to pay the tax on the withholding agent when it had no means to easily identify whether it had any such obligation at the moment of payment and when the transaction has already been closed and it has fulfilled its contractual obligation to make the payment long before the tax assessment.
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UCI(KEPA) : I410-ECN-0101-2009-366-015909753
