In evaluation: company tax planning developments in South Korea

An extract from The Corporate Tax Planning Law Review – Edition 3

Local developments

i Entity selection and business operations

Korean domestic business entities, regardless of their form, are taxed on their worldwide income. Therefore, their Korean source income as well as foreign source income is subject to taxation in Korea, while foreign tax credits are available. In contrast, foreign business entities are taxed only on their Korean source income.

Under Korean tax law, no business entity is treated as being transparent for tax purposes by default. Only certain types of business entities may choose to be treated as a partnership that is transparent for tax purposes, for example:

  1. johap formed by a contractual arrangement between the johap’s members (johap may loosely be translated as an unincorporated association, which is not a legal entity separate from its members);
  2. hapmyung hoesa (general partnership company; it is an incorporated entity, but all members of the hapmyung hoesa have unlimited personal liability for the entity’s obligations); and
  3. hapja hoesa (limited partnership company; it is an incorporated entity, but at least one member of the hapja hoesa has unlimited personal liability for the entity’s obligations), all of which are incorporated entities but may choose to be treated as partnerships for tax purposes.

A partnership itself is not subject to income tax, but its partners are (i.e., entity-level taxation is avoided).

Entity forms

Under the Korean Commercial Code (KCC), the following five forms of legal entity are available (there are no hybrid or reverse hybrid entities in Korea): (1) joint stock companies; (2) limited companies; (3) limited liability companies; (4) general partnership companies; and (5) limited partnership companies.

These are incorporated entities, and as such, generally have a separate legal status from their shareholders or members (owners). However, all members of general partnership companies have unlimited personal liability for the entity’s obligations, and at least one member of a limited partnership company must have unlimited personal liability for the entity’s obligations. These entities are generally subject to entity-level taxation; however, general partnership companies and certain limited partnership companies may elect to be treated as partnerships for Korean tax purposes, as discussed above.

Joint stock companies and limited companies are the most commonly used corporate forms. Joint stock companies have the ability to issue corporate bonds, and their shares can be publicly traded if listed on a stock exchange, but they are subject to more stringent corporate formalities. Limited companies are subject to simpler rules, so can be more efficiently managed.

In addition to corporate income tax paid by a company (assuming no partnership election is made), the shareholders or members of the company, whether natural persons or corporate entities, are also subject to income tax with respect to dividends received from the company. Double taxation may be partly relieved through tax credits or deductions.

For US tax purposes, only joint stock companies are ineligible to make a check-the-box election.

A shareholder or a member of a company may exit from an investment through share transfer, capital redemption, or liquidation of the entity. The specific requirements for each exit alternative vary depending upon the form of entity. Generally, joint stock companies offer the most freedom for shareholders in disposing their shares, whereas for the other forms of entity, consent from the other members is typically required.

Domestic income tax

A Korean company is subject to both corporate income tax (a national tax) and local income tax, with respect to its worldwide income (i.e., both Korean domestic source income and foreign source income). Corporate income tax rates are progressive. The tax bases and corresponding corporate tax rates are as follows:

  1. up to the first 200 million won, 11 per cent;
  2. between 200 million and 20 billion won, 22 per cent;
  3. between 20 billion and 300 billion won, 24.2 per cent; and
  4. above 300 billion won, 27.5 per cent (all inclusive of both corporate income tax and local income tax).

In addition, corporations with net assets of more than 50 billion won may be subject to additional income tax on ‘excessive retained earnings’, which are earnings not disbursed in the form of investment in machinery and equipment, or increased wages. Special Tax Treatment Control Law provides various tax incentives to, among others, investment in machinery and equipment, R&D, employment and restructuring.

Net operating losses cannot be carried back, but may be carried forward for 15 years,2 and they are only allowed to offset against up to 60 per cent of taxable income for the concerned fiscal year. As an exception, for a small or medium-sized enterprise (as defined), one year carry back of net operations losses is allowed without the 60 per cent limitation.

A sole proprietorship’s income is subject to both the national income tax and the local income tax at the owner level at his or her individual income tax rate, which is also progressive (6.6 per cent to 49.5 per cent).

International tax

As mentioned above, Korean companies are subject to Korean corporate income tax with respect to their worldwide income or gain. Thus, foreign source income as well as Korean source income is subject to corporate income tax in Korea. To avoid double taxation, Korean companies may claim foreign tax credits on foreign income taxes paid on foreign source income, subject to a country limit, in determining their Korean corporate income tax liability. Excess foreign tax credits can be carried forward for 10 years and unused credits that are carried forward will be treated as deductible expenses in the 11th year. Conversely, foreign corporations and local branches of foreign corporations are taxed on Korean-sourced income only. For this purpose, foreign source income attributable to local branches of foreign corporations is treated as domestic source income.

There is a controlled foreign corporation (CFC) regime, as explained in Section II.ii, which aims to prevent deferral of taxation on overseas earnings.

Under Korean tax law, no patent box regime exists. However, Korean tax law allows, subject to certain conditions, a 50 per cent tax reduction in income generated from the transfer of a patent or technology that a small or medium-sized enterprise (as defined) acquired as a result of its own research and development.

Capitalisation requirements

Interest deduction is limited in certain situations. First, under the thin capitalisation rules, interest deductibility of a Korean company whose debt-to-equity ratio exceeds 2:1 (6:1 in the case of financial institutions) is limited with respect to loans either from a foreign controlling shareholder or from a third-party lender that is guaranteed by a foreign controlling shareholder.

In addition, interest deductibility is limited depending on the use of the underlying loans. For instance, interest on loans incurred to acquire or maintain non-business assets, including certain loans to related parties, is not deductible.

Finally, with respect to BEPS Action 4, a limitation on interest deductibility started to be enforced from 2019. Related-party interest is not deductible to the extent of the greater of (1) the amount of interest disallowed under the thin capitalisation rules and (2) the net interest expense incurred on related-party loans that exceed 30 per cent of taxable income plus net interest expense, depreciation and amortisation (EBITDA).

ii Common ownership: group structures and intercompany transactionsOwnership structure of related parties

A Korean domestic parent (but, not a foreign parent) may elect to file a consolidated tax return with respect to its 100 per cent owned domestic subsidiaries with approval of the commissioner of the relevant regional tax office. Once elected, consolidation is mandatory for all 100 per cent owned subsidiaries, and the election is irrevocable for five fiscal years.

There is no particular loss-sharing regime (by statute or contract) for related parties in general except for the consolidated tax return regime; however, for joint business operation or management between corporations, there is a rule that regulates the amount of deductible expenses incurred or paid by the joint operation.

Under the CFC regime, a Korean shareholder that holds 10 per cent or more of a foreign subsidiary directly or indirectly could be currently taxed on its share of the foreign subsidiary’s undistributed earnings. More specifically, the CFC regime applies if the following conditions are met:

  1. the foreign subsidiary is a related party to the Korean shareholder, as defined in the International Tax Coordination Law (ITCL); and
  2. the foreign subsidiary is located in a jurisdiction in which its income is subject to an effective tax rate of 15 per cent or less.

There are certain exceptions to such current taxation. For example, companies with retained earnings of less than a certain threshold amount, holding companies that meet certain requirements or companies that are engaged in an active trade or business in the local jurisdiction are not subject to the CFC rules.

In addition, the CFC rules do not apply to a foreign branch of a Korean company; the branch’s income in its entirety would be directly included in calculating the current taxable income of the Korean company.

Domestic intercompany transactions

There are local transfer pricing rules, according to which the tax authorities may disregard transactions with related parties when they determine that the tax burden of a domestic corporation has been unjustly reduced through such related-party transactions. In such a case, the tax base of the domestic corporation is calculated by applying an arm’s-length price to the related-party transaction in question, but no corresponding adjustment is allowed.

There are no deductible or tax-exempt related-party payments that can reduce the overall net income.

There is no participation exemption, but dividend received deduction (DRD) is available on dividend received locally (i.e., dividend income that a domestic corporation receives from another domestic corporation in which it has made an equity investment). This amount as calculated under the relevant tax law provisions is not included in the gross income for the purpose of calculating the tax base. DRD ratio differs depending on ownership ratios and public versus non-public (unlisted) corporation status. For example, a 100 per cent DRD is allowed for dividends from a 100 per cent owned subsidiary, and a 50 per cent DRD for dividends from an unlisted subsidiary that is owned not less than 50 per cent but less than 100 per cent.

International intercompany transactions

Although the commentaries or various guidelines issued by OECD are not part of tax law in Korea, the Korean government, as a member of OECD, continues its endeavour to incorporate such commentaries or guidelines into its domestic tax law – as such, the Korean tax authorities recognise and the Korean tax laws closely adhere to the arm’s-length principle and OECD’s Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (the OECD Transfer Pricing Guidelines). The Korean government has implemented several BEPS measures.

According to the ITCL, the Korean tax authorities may determine or recalculate the taxable income and corresponding taxes of domestic corporations (including foreign invested corporations) based on the arm’s-length price. Transfer pricing issues that are often raised by the tax authorities are for the price of goods imported from foreign related parties for resale to customers in Korea, interest on intercompany loans, management service fees, and royalties on licensing of patents or know-how from overseas affiliates.

As mentioned above, the thin capitalisation rules limit the interest deductibility for domestic corporations with respect to loans from a foreign controlling shareholder. There are also rules that limit deductibility of overall interest expenses based on the use of the underlying loans.

The above-mentioned Korean CFC regime mandates taxation at the Korean shareholder level of its allocable portion of the foreign subsidiary’s undistributed income earned in low-tax jurisdictions.

There are no specific limitations on shifting income to low-tax jurisdictions or generating deductions in high-tax jurisdictions, but such transactions are subject to the arm’s-length principle or the substance-over-form doctrine.

Dividends received by a Korean company from its foreign subsidiaries are subject to corporate income tax in Korea at the Korean company level. Foreign tax credits are available for any foreign income taxes on the dividends paid by the Korean shareholder. In addition, indirect tax credits may be available with respect to foreign income taxes paid by a foreign subsidiary, subject to certain conditions. Tax-sparing credit may also be available in limited situations.

iii Third-party transactionsSales of shares or assets for cash

Capital gains or losses realised or incurred by a Korean company from the sale of shares or assets are generally treated the same as ordinary business profits or losses, and thus are subject to corporate income tax at the normal rates. However, capital gains realised from the sale of certain non-business real estate are subject to an additional 10 per cent tax on top of the ordinary corporate income tax.

There is neither participation exemption nor reinvestment relief on capital gains. Losses incurred by sale of shares or assets are recognised and thus reduce the tax base; there is no limitation on the recognition of losses.

Tax-free or tax-deferred transactions

In the case of an ‘unqualified’ merger, the surviving corporation is deemed to have succeeded to the assets from the merged (or target) corporation at the market price, and, therefore, the capital gains of the merged corporation is taxed at the corporate income tax rate. Conversely, in the case of a ‘qualified’ merger that meets the below requirements, the merged (or target) corporation is exempt from taxes on the gains from the transfer, and the surviving corporation benefits from the deferral of taxes on the profits from the merger.

A merger is a tax-free ‘qualified merger’ if the following requirements are met:

  1. the merger is between domestic corporations that have continued to operate their businesses for at least one year;
  2. the value of the stock of the surviving corporation or the parent corporation of the surviving corporation is at least 80 per cent of the total consideration of the merger that the shareholders of the target corporation receive;
  3. the surviving corporation continues to operate the acquired business until the last day of the business year in which the merger occurs; and
  4. the ratio of employees transferred to the surviving corporation is at least 80 per cent and the ratio remains unchanged until the end of the business year in which the merger occurs.

Similar, but not identical, requirements and tax effects are stipulated for tax-free ‘qualified’ spin-offs and ‘qualified’ in-kind contributions.

Therefore, in the case of mergers or spin-offs, to minimise taxes payable, the requirements for tax-free treatment should be carefully reviewed and taxpayers should meet these requirements.

International considerations

There are no specific rules that allow or deal with deferral of tax, recapture or participation exemption with respect to cross-border third-party transactions. Generally, the substance-over-form doctrine applies to cross-border transactions as well as domestic transactions, under which the tax authorities may disregard legal forms employed by the taxpayer and may exercise its taxing rights according to the economic substance of the subject transaction. However, the substance-over-form doctrine rarely applies to unrelated third-party transactions.

Withholding applies to cross-border transactions involving payments of domestic source income to foreign corporations, such as interest, dividends, royalties and capital gains. In this regard, tax treaties take precedence over Korean domestic tax laws.

iv Indirect taxes

Generally, the supply of goods or services is subject to 10 per cent value-added tax (VAT) while certain goods or services are subject to zero-rate VAT (e.g., exported goods) and certain other goods or services are exempt from VAT (e.g., financial services). VAT generally applies to transactions between domestic companies, but goods or services supplied by foreign companies to Korean companies may also be subject to VAT. For example, importation of goods into Korea is subject to VAT and certain recipients (e.g., financial institutions) of services from a foreign entity are required to pay VAT by proxy on behalf of the foreign entity.

A supplier of VAT-taxable goods or services is required to issue VAT invoice to, and collect the VAT from, the purchaser. A supplier is required to remit to the government the difference between the VAT collected from its purchasers less VAT paid to its vendors, and if the difference is negative, the supplier is entitled to a refund. Issuance of false or fictitious VAT invoices is subject to heavy penalties, such as denial of input VAT credit or criminal punishment. For multinational companies, one of the crucial questions is whether a certain supply of goods or services is subject to VAT in given circumstances and who should be the issuer or recipient of VAT invoices. The answers to these questions are not always clear.

In 2015, in response to BEPS Action 1 (Addressing the Tax Challenges of the Digital Economy), Korea introduced a new provision in the VAT Law that imposes VAT on foreign companies without a permanent establishment supplying certain electronically delivered services, including game, video or audio to B2C users.