country update: korea · pdf filecountry update: korea alex lee tax partner, pwc korea changho...

Country update: Korea

Alex LeeTax Partner, PwC Korea

Changho JoPartner, PwC Korea

www.pwc.com

PwC

Agenda

2

1Overview and general update 2

Korean tax update2.1 Corporate tax

2.2 Individual income tax

2.3 Court case

3Q&A

Global Tax Symposium – Asia 2015

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Overview and general update

3Global Tax Symposium – Asia 2015

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1. 2014 tax revenue

• Tax revenue shortfalls for 3 year in a row• Tax revenue shortfall gets bigger

203.0 201.9 205.5 205.8

210.4

216.5

180

185

190

195

200

205

210

215

220

2012 2013 2014

Actual Target

(Unit: KRW trillion)

4

Tax revenue shortfall of KRW11tn in 2014


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2. 2014 tax appeal (1/2)

• No. of appeals against NTS assessment went down by 2.7% • But the amount was up by 10.4% (Unit: KRW trillion, thousand cases)

14,900

18,160 18,110 18,000 18,070

17,390 17,670 17,680

17,980 17,490

5.3

8.8510.33

12.3113.59

0

5

10

15

-

5,000

10,000

15,000

20,000

2009 2010 2011 2012 2013

# of Audits # of Appeals Amount under Appeal

* Not released for 2014

5

Increase in appeal amount


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2. 2014 tax appeal (2/2)

• The success rate in pre-assessment appeal went down by 10.2%• But the success rate in appeal to Tax Tribunal was up by 5.3%

35.2% 34.5% 33.0% 32.2%

22.0%

26.4% 29.1%26.6%

23.4% 24.1%25.6%20.1% 23.7% 22.3% 22.6%24.6%

23.5% 24.0%26.4%

31.7%

10.9% 12.3%9.8% 11.7% 13.5%

2009 2010 2011 2012 2013

Pre-assessment appeal Appeal to NTS Appeal to BAI Appeal to TT Appeal to court

* Not released for 2014

6

Taxpayer’s success rate


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3. Tax policy for 2015

NTS plan for 2015• Enhance expertise in tax controversy and litigation

• Audit directive for 2015

- Reduce the total number of audit to less than 18,000 in 2015

- Continue to focus on tax evasion (through offshore transaction schemes, unfair gift and inheritance etc.)

- May request an official meeting with chief officer in charge of the audit when there is a dispute with field auditors

2013 2012 2011# of audit 18,709 18,000 18,110

SME 0.75% 0.73% 0.81%

Large corporation 17.81% 15.87% 18.09%

- Appoint an ex-judge as deputy director of the litigation department

- Reinforce the litigation department hiring external experts (e.g. tax lawyers and ex-judges)


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Korean tax update


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Corporate tax


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1. Korea’s tax treaty (1/2)

83 in-force tax treaties• 85 in-force tax treaties as of April 2015, including recently-revised ones below

Luxembourg – 4 Sep 13 Singapore – 28 Jun 13 Italy – 23 Jan 15

dividend 10% if directly own at least 10%; 15%

10% if directly own at least 25%; 15%

10% if directly own at least 25%; 15%

interest 10% (5% for bank) 10% 10%

royalty 5%; 10% 15% 10%

capital gain Taxed Taxed Taxed-certain shares


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1. Korea’s tax treaty (2/2)

Pending tax treaties• Signed but not ratified treaty with 5 countries/territories, including Hong

Kong (8 Jul 14) • Signed but not ratified revision with Belgium (8 Mar 10), Italy (3 Apr 12),

Poland (2 Oct 13) • Concluded negotiation for treaty with 7 countries, such as Ethiopia (24

Jul 14)• Concluded negotiation for treaty revision with 6 countries

- Austria (26 Jan 11), Australia (8 Oct 10), Malaysia (1 Nov 13), India (16 Jan 14), Vietnam (20 Aug 14), Brazil (8 Jul 14)


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2. Requirement for tax treaty exemption

• Changes to obtaining tax exemption under a treaty:

- Korean payer needs to apply domestic withholding tax rate if it cannot verify that the overseas recipient is the BO based on the tax exemption application or report for foreign investment vehicle prepared and provided by the recipient (effective for the payment from 1 Jan 2014)

- BO or the Korean payer can apply for a refund of the tax withheld

- Similar to the existing requirement for obtaining reduced treaty rates

Overseas recipient

Korean payer

Payment e.g. interest, royalties, etc.

Korea

Overseas

Tax treaty with Korea

provides tax exemption in Korea


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3. Corporate Income Tax Law (CITL) (1/5)New temporary surtax on excessive corporate reserve

In order to motivate companies to utilise corporate retained earnings for facility investment, wage increase and dividend payment, the amended CITL introduced a 10% additional levy on corporate income if the use of the retained earnings falls short of a certain portion of corporate net income in the concerned year.

Any resultant shortage or excess in the current year may be carried forward to offset against those in the following year.

This surtax will sunset in 2017.


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Major points of the additional levy under the amended CITL include the following:

• The additional levy is applicable to companies with net equity in excess ofKRW50 billion (excluding SMEs) and companies belonging to businessgroups which are subject to restrictions on cross-shareholdings under theAct on Monopoly Regulation and Fair Trade.

• Regarding the method of charging the additional levy, companies may electone of the following methods. Once elected, the method cannot be revokedfor three consecutive years:

1. (adjusted taxable income for the year x 80% – the total amount of investment, payroll increase and dividend payment) x 10%; or

2. (adjusted taxable income for the year x 30% – the total amount of payroll increase and dividend payment) x 10%


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Case study 1


Qualified expenditures

(140)

Shortage(30)

FY15

Threshold(100)


(70)

Excess(20)

FY16

Threshold(120)

• Shortage of 30 in FY15 can be carried over to offset against any excess in FY16

• Net shortage amount in FY15 (10=30-20) will be subject to additional 10% tax on excessive corporate reserve when filing FY16 CIT return


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Case study 2

• Shortage in FY15 can be offset against the excess amount in FY16

- No tax due on excessive corporate reserve for FY15 when filing FY16 CIT return• Remaining net excess of 10(=30-20) in FY16 can be carried over

- No tax due on excessive corporate reserve for FY16 when filing FY17 CIT return• Net shortage for FY17 is 20(=30-10) and it carries over to FY18

- Tax due for FY17 will depend on the shortage/excess of FY18 when filing FY18 CIT return

FY16 FY17


(150)

Shortage(20)

FY15

Threshold(100)


(80)

Excess(30) Threshold

(120)


(120)

Shortage(30)

Threshold(150)


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3. Corporate Income Tax Law (CITL) (5/5)

Tightening of the thin capitalisation rule

Past New

• If debts from a foreign controlling shareholderexceed 3 times (6 times for financial institutions)*

the equity, the interest is non-deductible.

• The borrowing ceiling is lowered to 2 times* the equity (ceiling for financial institutions remains unchanged)

Change in creditable foreign taxesPast New

• The creditable foreign tax is limited to CIT paid by direct subsidiary with 10% or more direct ownership and indirect subsidiary (grandson) with 10% or more indirect ownership .

• Limitation amount can be calculated either by country or based on total amount of foreign tax.

• Foreign tax credit is available only for direct subsidiaries with 25% or more direct ownership - Foreign grandson company is no

longer eligible for foreign tax credit

• Limitation amount can only be calculated on country by country basis.


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4. Special Tax Treatment Control Law (STTCL) 1/3

Employees covered by a new tax credit for increase in corporate payroll

● The amended STTCL introduces a temporary 5% tax credit (10% for SMEs) on the incremental amount in average corporate payroll over a certain base level, which is calculated in a prescribed manner by taking into account the average corporate payroll over the previous three years.

● This is conditional on there being no decline in the number of full-time employees from the previous year.


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Employees covered by a new tax credit for increase in corporate payroll (cont’d)

The tax credit is applicable only when there is an increase in the payroll of ‘full-time employees’, which is stipulated under the Enforcement Decree of the STTCL.

The ‘full-time employees’ refers to employees who have employment contracts in accordance with the Labour Standard Act. However, the following categories of employees are not taken into account:

1. a company’s representatives or directors including unregistered directors 2. those in high income brackets of KRW120 million or more in annual

compensation3. those who are related parties or relatives of the largest shareholder in the

company


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Tax credit rate for job creating investmentThe STTCL has been amended with some modifications from the government’s original reform proposal announced last August. The key changes relating to tax credit rates for job creating investment under the recently amended law include:

● For large corporations, the basic credit is abolished (i.e. from 1-2% to 0%), but the additional credit (which is available in proportion to an increase in job creation) is raised by 0%-2% point.

● For medium-scale companies and SMEs, the basic credit rate is lowered by 1% point, while the additional credit rate is raised by 1%-3% point.

Large corporations Medium-scale companies SMEsCapital territory

Local province

Capital territory

Local province

Capital territory

Local province

Basic 1% → 0% 2% → 0% 2% → 1% 3% → 2% 4% → 3% 4% → 3%

Additional 3% → 4% 3% → 4, 5% 3% → 4, 5% 3% → 5, 6% 3% → 4, 5% 3% → 5, 6%

Total 4% → 3, 4% 5% → 4, 5% 5% → 5, 6% 6% → 7, 8% 7% → 7, 8% 7% → 8, 9%


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5. Value Added Tax (VAT) Law

VAT imposing on digital services via foreign open-marketPast New

• Digital services (e.g. applications, mp3 files, movie files, etc.) provided by a foreign company through foreign open-market (e.g. Google’s android market, Apple’s app store) is not taxable in Korea

• Such digital services provided by a foreign company through foreign open-market shall be subject to VAT in Korea and VAT return and payment should be made by the non-resident who operates the open-market

• Apply to the supply of services on or after 1 July 2015

Statutory invoice via electronic wayCurrent Proposed

• VAT exempted entrepreneurs can issue statutory invoice to their customer either in electronic way or manually

• From July 2015, where VAT exempted goods/services are provided, statutory invoice should be issued electronically

• Failure to this obligation would result in penalty from 1 Jan 2016


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6. Others

Extension of statute of limitation for tax refund claim• The statute of limitation for a refund request of national taxes and customs is extended

from 3 years to 5 years.

Penalty for reporting obligations regarding withholding statement

Current Proposed

• 2% penalty should be paid in case where withholding statement (e.g. interest, dividend and etc.) has not been reported or the reported details are unclear

• Penalty should be reduced to 1% for the case where it is reported within 1 month from the due date

• It would be also subject to 2% penalty if the reporting includes wrong information

• Penalty should be reduced to 1% for the case where it is reported within 3 months from the due date


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7. Law for coordination of international tax affairs (1/3)

Introduction of advance agreement on transfer prices and customs value

• Opportunity to request an advance agreement, which would essentially be a mutual agreement on the customs value and transfer prices by the customs and tax authorities.

• To be eligible, the taxpayer must apply for an Advance Customs Valuation Arrangement (ACVA) and Advance Pricing Agreement (APA) at the same time. Only the three traditional transactional methods for transfer pricing and four customs valuation methods are eligible for the advance agreement.


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Introduction of advance agreement on transfer prices and customs value (cont’d)

• The NTS and KCS must notify a taxpayer of their review results within 90 days from the date the application is accepted. If rejected, the taxpayer must inform the relevant authorities of whether the taxpayer intends to separately seek an APA or ACVA within 30 days from the date the notification is received.

• Uncertainties still remain on how the process will be executed in practice, but if effectively implemented, may become a practical tool to harmonise transfer pricing and customs compliance.

• This change will be applicable to requests filed on or after 3 February 2015.


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Penalty for non-compliance with disclosure of intercompany transactions with overseas related parties

● For failure to comply with the requirement for disclosing details on international transactions with related parties, a penalty of KRW 1o million will be imposed.

1. Summary of international transactions(nature and amount) with related parties

2. Summary of P&L of related parties


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Individual income tax


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1. Tax residency

How long will you

stay in Korea?

Less than 183 days

More than 183 days but 5 years or less

More than 5 years

27

Non tax resident (<183 days)

• Report Korean sourced income only unless exempt from Korean tax under the tax treaty

Tax resident (≥183 days)

• Report Korean sourced income only until 5 years (See section 3 for more information)

• Report worldwide income after 5 years


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2. Korean income tax compliance – salary income

Paid or borne by a local entity(including a

charge-back)? Salary income NOT subject to withholding by the entity in Korea

The taxpayer directly reports and pays the relevant taxes through1. An annual income tax return, or2. A taxpayers’ association on a monthly basis

(with a 10% tax credit)

NO

Salary income subject to withholding by the entity in Korea

The Korean entity withholds taxes by the 10th of the following month (together with year-end settlement in March of the following year)

YES


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3. Korean income tax compliance – personal income

Report it through the Korean Global Income Tax Return by31 May of the following year

Foreign residents are not required to report their foreign sourced income in Korea if all the following conditions are satisfied: 1. a foreign resident has stayed in Korea for no more than 5 years during a 10 year

period from the end of the tax year, and2. the foreign sourced income was not paid in Korea during the tax year, and3. the foreign sourced income was not transferred to Korea during the tax year

Any otherincome?

(interests, dividends, rental income,

business/rental income, miscellaneous

income, or other salary income)

YES


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4. Tax law change in flat tax rate

Employees who started working in

Korea before 1 Jan 2014

Employees who started/ start

working in Korea on or after 1 Jan 2014

Employees workingfor authorised

corporateheadquarters

5-year time limit Not subject to the time limit Subject to the time limit

Sunset provision(31 December 2016) Subject to the sunset provision Not subject to the

sunset provision

Employees who are related parties of their employers

Flat tax rate is not applicable

Under the revised tax law, a flat tax rate (18.7% including local income surtax) for foreigners is as follows.


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Court case


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National tax tribunal 2012 Gu 218, 2014.05.29

US Co

Hold Co

Korean Co

100%

50%Dividend

Facts

• Korean National Tax Service (NTS) held that US Co is the beneficial owner of dividend from Korean Co and assessed withholding tax of 15% under Article 12(2)(a) of the Korea/US treaty (US treaty)

• Under the US treaty, 10% applies where at least 10% of Korean Co is ‘owned’ by the dividend recipient

• NTS held that 10% cannot be applied since US Co does not directlyown Korean Co and is not the ‘dividend recipient’

• NTS tried to distinguish it from prior Supreme Court case 2012 Du 24573 (24 May 2013) which dealt with the same issue in the context of Korea/Japan treaty which refers to ‘beneficial owner’ owning shares in the Korean company (as opposed to a dividend recipient)

Decision• NTT held that lower rate should apply and US Co deemed to be

‘dividend recipient’ in substance

• The term ‘owned’ should include both direct and indirect ownership unless the treaty specifically refers to direct ownership


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Supreme Court 2012 Du 11836, 2014.06.26

US Resident

US LLC

20%

US Resident

HK Resident

20% 60%

Lux Co

Bel Co

Korean Co

33.3%

88.75%

100%

Facts

• NTS looked through the intermediary holding companies and assessed Korean tax to HK resident on capital gain from sale of Korean Co

• However, High Court held that US LLC should be regarded as the beneficial owner and US tax resident on the basis that LLC is a United States Corporation, notwithstanding that it elected to be taxed as a partnership for US tax purposes

Decision• Supreme Court held that the US LLC should only be regarded

as a US resident to the extent that the income is subject to US tax in the hands of the US LLC members as income of a US resident

• A foreign company which is regarded as a company and beneficial owner for Korean tax purposes will still be looked through if it is a tax transparent entity and as a consequence, does not meet the definition of a resident under the relevant treaty due to its tax transparent status.


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Supreme Court 2012 Du 16466, 2014.07.10

French Co

Dutch Holdco

Korean Co

100%

79.44% 20.56%

Sale of shares

Facts

• Dutch Holdco claimed a tax exemption on the capital gain from the sale of shares in Korean Co under the Korea/Dutch treaty

• The NTS denied the treaty claim on the basis that Dutch Holdco is not the beneficial owner

Decision

• Supreme Court confirmed the High Court decision that Dutch Holdco is not a conduit and should be regarded as the beneficial owner

• Facts considered in ruling that Dutch Holdco is the beneficial owner included:- Dutch Holdco was a ‘genuine’ holding company

- Physical substance: office, employees, audited financial statements and tax returns

- Economic substance: invested in Korea Co using its own funds, reinvested profits from Korean Co and sale proceeds for its own business purpose without distribution to French Co


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Supreme Court 2012 Du 18356, 2014.11.27

US Co.

Korea

US

Korean Co.

Right to use of patents Royalties net of

WHT under US/Korea tax treaty

In November 2014, the Korean Supreme Court ruled that payments made for the use of patents registered outside Korea for domestic use is not considered as Korean-source income, and the relevant royalty payments are not subject to tax in Korea.

The conclusion is based on that the jurisdiction where the patent is used should be strictly determined based on the country where the patent is registered in accordance with the territorial principle of the patent.

In light of this Supreme Court decision, the US Co. may consider seeking tax refund claims for the taxes withheld on payments received from Korea for the use of patent not registered in Korea.


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Q&A


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Contacts

Changho JoTax PartnerPhone: +(82)-2-3781-3264Email: [email protected]

Alex LeeTax PartnerPhone: +(82)-2-709-0598 Email: [email protected]


Thank you.

The information contained in this presentation is of a general nature only. It is not meant to be comprehensive and does not constitute the rendering of legal, tax or other professional advice or service by PricewaterhouseCoopers Ltd. ("PwC"). PwC has no obligation to update the information as law and practices change. The application and impact of laws can vary widely based on the specific facts involved. Before taking any action, please ensure that you obtain advice specific to your circumstances from your usual PwC client service team or your other advisers.

The materials contained in this presentation were assembled in May 2015 and were based on the law enforceable and information available at that time.

© 2015 PwC. All rights reserved. PwC refers to the PwC network and/or one or more of its member firms, each of which is a separate legal entity. Please see www.pwc.com/structure for further details.

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