세법상(稅法上) 속인주의(屬人主義)와 속지주의(屬地主義)의 대립

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.