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세법상(稅法上) 속인주의(屬人主義)와 속지주의(屬地主義)의 대립 : In-personam v. Territorial Taxation Dispute
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- Issue Date
- 2009
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.50 No.1, pp. 225-264
- Keywords
- 속지주의 ; 속인주의 ; 전세계소득 과세 ; 국외원천소득 ; 외국납부세액 공제 ; 자본소유중립성 ; territorial jurisdiction ; foreign source income ; foreign tax credit ; in-personam jurisdiction ; foreign tax deduction ; capital export neutrality
- Abstract
- Most nations exercise in-personam jurisdiction for residents on their world-wide
income, as well as territorial jurisdiction for non-residents on their domestic
source income. In reality, however, territorial jurisdiction functions as the
virtually governing norm because foreign income can avoid in-personam jurisdiction
simply by taking advantage of the legal formality of incorporating a
subsidiary in a foreign country. The paper analyzes the logical and historical
reason underlying this structure.
Where does the disparity between the norm of worldwide taxation and the
reality of territorial taxation originate from? The paper proffers a hypothesis that
the personal v. territorial tax controversy can be reduced to a conflict between
the populist notion of equity and the class interest of capital owners. First, the
paper demonstrates that worldwide taxation is superior to territorial taxation in
terms of equity as well as efficiency. In particular, it disproves the notion of
capital ownership neutrality recently advanced by Desai and Hines, which
supports territorial principle. The paper then attempts at analyzing why the
territorial principle trumps the worldwide taxation in reality. It shows that the
conceptual difficulty inherent in the latter is not insurmountable, and then
suggests the class interest hypothesis by reference to the history of tax rules.
- ISSN
- 1598-222X
- Language
- Korean
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