Contributed By Yulchon LLC
Under the Korean Commercial Code (KCC), the following types of legal entities are recognised in Korea:
All five of the above entities are generally taxed as separate legal entities. However, Hapmyong Hoesa and Hapja Hoesa can elect to be treated as transparent for Korean tax purposes, thereby becoming subject to the Korean partnership tax regime.
In Korea, entities that are not a corporation and have an agreed method of distributing profits between members (ie, association, foundation, Johap under the Korean Civil Code, and Hapja Johap or Ikmyong Johap under the KCC) are tax-transparent entities. A Johap is similar to a partnership in concept. Also, trusts formed by a contractual arrangement are generally treated as tax-transparent entities.
In addition, Hapmyong Hoesa and Hapja Hoesa – which are incorporated entities – may choose to be treated as partnerships that are transparent for tax purposes. Under Korean tax law, partnerships are exempt from tax at the partnership level, but each partner is subject to tax on earned income distributed from the partnership.
According to the Korean Corporate Income Tax Law, a corporation that has its head office or principal office in Korea is a resident corporation. Also, a corporation with a place of effective management in Korea is treated as a resident corporation.
The place of effective management refers to the place where the key management and commercial decisions that are necessary for the conduct of the entity’s business are made in substance. The determination of the place of effective management is based on all relevant facts and circumstances.
The applicable corporate income tax (CIT) rates are as follows:
In addition, the income of businesses owned by individuals directly (sole proprietorships) is taxed at the owner’s personal income tax (PIT) rates as follows:
In determining taxable income for CIT purposes, expenses (including interest expense, depreciation and general administrative expenses, such as rental expenses) that are reasonably connected with a company’s business can be deducted from the company’s taxable revenue.
Taxable income is based on the accounting profits, and adjustments are made for tax purposes, as required by the Korean Corporate Income Tax Law.
The Special Tax Treatment Control Law provides various tax incentives to stimulate R&D activities. Tax credits are available for qualifying R&D expenditures used in the development of research and manpower. In addition, until the end of 2021, a 50% CIT credit is provided for income resulting from the transfer of patents and eligible technology by SMEs. A 10% tax credit (up to the value of acquired technology) is also provided to qualifying domestic companies merging or acquiring technology innovative SMEs.
In accordance with the BEPS initiatives, most of the direct tax incentives and benefits previously available for foreign direct investment were abolished by the Korean government under the 2019 tax reform. However, the existing local tax and indirect tax incentives are maintained for qualifying foreign investors. Foreign investors are entitled to an exemption from acquisition tax and property tax on property acquired and owned for up to 15 years, and to an exemption from customs duties, VAT and individual consumption tax on imported capital goods.
Under Korean tax law, tax losses can be carried forward for 15 years, although annual utilisation is capped at 60% of annual taxable income (with an exception granted for SMEs and distressed companies).
Interest expense deductions are subject to the following limitations:
Consolidation is available for a domestic parent company and its directly or indirectly owned domestic subsidiaries. A taxpayer may elect the consolidated tax filing regime upon approval from the tax authority, but such election cannot be revoked for five years.
Capital gains are generally taxed at the same CIT rate as ordinary taxable income. However, capital gains from the sale of non-business purpose real estate are subject to additional capital gains tax, at the rate of 10%.
Value-added tax (VAT) is imposed on the supply of goods and services. The applicable VAT rate is generally 10%, but zero-rated VAT is available for exported goods and services rendered outside Korea and for certain services provided to a non-resident in a foreign currency. If a company carries on a VAT-able business in Korea, it must register its business under the VAT Act, file a quarterly VAT return and pay all VAT collected from its customers during the relevant quarter, minus any VAT credit to which it is entitled (input VAT).
Customs duties are generally imposed on imported goods. Importation means the delivery of goods into Korea to be consumed or used in Korea.
Acquisition tax is imposed on the purchase price of real estate, motor vehicles, construction equipment, golf memberships, etc. The acquisition tax rate varies depending on the type of assets, ranging from 0.96% to 4.6%.
Where an investor acquires shares in a company and becomes a controlling shareholder of such company (ie, the investor and its related parties collectively own, in aggregate, more than 50% of the shares in the company) as a result of the share acquisition, such investor is deemed to have acquired real estate, etc, held by the company and is subject to deemed acquisition tax of 2.2% (including surtax).
Securities transaction tax is imposed on the transfer of shares. The securities transaction tax rate for publicly traded shares is 0.23%, and the tax rate for unlisted shares is 0.43%.
A special excise tax is levied on the production or trading of certain luxury items, alcohol or tobacco. In addition, property tax (a local tax) is charged on the statutory value of land, buildings, houses, vessels and aircraft, while comprehensive real estate holding tax (a national tax) is charged on the aggregate published value of land, buildings and houses exceeding a certain threshold.
Accumulated earnings tax (AET) is applicable to Korean corporations that have shareholders’ equity exceeding KRW50 billion or that are designated as large conglomerates under the Monopoly Regulation and Fair Trade Act. The AET imposes additional income tax on corporate earnings not utilised for prescribed purposes (eg, designated investments, employee salaries, employee welfare funds).
The AET regime, as revised in 2018, is effective for fiscal years beginning on or after 1 January 2018, with the sunset clause due to expire as of 31 December 2022. Major changes include an increase in the tax rate applied to accumulated earnings from 11% to 22% (inclusive of local income tax), while dividends no longer reduce accumulated earnings.
The majority of closely held businesses, such as convenience stores and hair salons, operate in non-corporate form, but most businesses operate in corporate form.
In general, corporate income tax rates are lower than individual income tax rates. However, many individual professionals and businesses choose not to incorporate, so as to avoid subjecting earnings already taxed at the corporate level to double taxation when dividends are paid.
See 2.9 Incorporate Businesses and Notable Taxes
Dividends paid to an individual shareholder are subject to a withholding tax of 15.4% (inclusive of local income tax). However, if an individual shareholder’s total financial income (interest income + dividends) exceeds KRW20 million per year, the excess is taxed at regular personal income tax rates.
Capital gains arising from the sale of shares in an unlisted SME are subject to 10% capital gains tax (20% for shareholders with a substantial ownership interest). Individual shareholders who realise capital gains from the sale of shares in an unlisted company that is not an SME are subject to 20% capital gains tax (30% for major shareholders).
Dividends paid from a publicly traded corporation to an individual shareholder are taxed in the same manner as those paid from an unlisted company to an individual shareholder.
Capital gains arising from the sale of listed shares are not subject to tax when sold by a minority shareholder through the securities market. However, when the sale takes place over the counter, the capital gains are subject to a 20% tax (10% in the case of listed shares in an SME). When the total stake of a shareholder in a listed company, together with any related parties (majority shareholder), exceeds 1% of the total shares, or if the total market value of the stock held by the shareholder is KRW1 billion or more (lowered in April 2020 from the previous threshold of KRW1.5 billion), such shareholder will be taxed at 30% on the capital gain regardless of whether the shares were sold through the securities market or over the counter. For this purpose, the threshold amount was supposed to be further lowered to KRW300 million from April 2021, but the Korean government recently announced its plan to maintain the current threshold of KRW1 billion throughout 2021. The presidential decree of the relevant tax law is expected to be amended in early 2021 to reflect the government’s recent announcement.
In general, interest, dividends and royalties paid to a non-resident company or individual are subject to 22% withholding tax (inclusive of local tax). The rate may be reduced under applicable tax treaties.
As of January 2021, Korea has concluded double tax agreements with 94 countries. Foreign investors have primarily used the Netherlands, Belgium and Ireland in making investments into Korea through intermediate holding companies.
The Korean tax authority tends to challenge the use of treaty countries by non-treaty country residents by aggressively applying the substance-over-form principle to argue that entities established in favourable treaty countries are not the beneficial owners of the relevant Korean source income. A “beneficial owner” is a person who bears legal or economic risk related to Korean source income and who, in substance, holds ownership rights over such income, including disposition rights.
The Korean tax authority closely monitors companies whose profitability suddenly drops or whose profits fluctuate over a number of years. The Korean tax authority is likely to scrutinise companies that have had significant business restructuring as well as those paying substantial royalties or management service fees to foreign companies and companies with financial transactions with overseas related parties.
The Korean tax authority challenges the use of limited risk distribution arrangements from a transfer pricing perspective.
Korea is a member of the OECD and generally follows the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (OECD Guidelines). However, the OECD Guidelines do not have the force of law, while the Law for the Coordination of International Tax Affairs (which governs transfer pricing) does. Accordingly, the Korean tax authority might not accept a taxpayer’s arguments if they are based solely on the OECD Guidelines.
Mutual Agreement Procedures (MAP) can resolve international transfer pricing disputes between Korea and countries that have concluded a tax treaty with Korea. The National Tax Service (NTS), which is in charge of the Korean MAP process, negotiates MAP cases with the other competent authorities. According to MAP Statistics released by the OECD, as of 1 January 2019, there were 72 open MAP cases relating to Korean transfer pricing, and 18 cases that closed during 2019. 36 new MAP cases commenced during 2019, and 90 open MAP cases remained as of 31 December 2019. It typically takes two to three years from the date the initial application is accepted to complete the MAP process.
Taxpayers can resort to a MAP under the relevant tax treaty in order to resolve double taxation arising from a transfer pricing adjustment. A MAP can generally be requested within three years of the date when the taxpayer becomes aware of the adjustment.
A MAP is often initiated in the jurisdiction that is expected to claim a tax refund. Competent authority (CA) negotiations will commence on the date the relevant CA sends a letter to the other CA accepting the request for a MAP. The CAs will then discuss issues through the exchange of position papers and via CA meetings throughout the year.
If the MAP is concluded, the initial transfer pricing adjustment should be reduced or cancelled based on the MAP agreement. Compensating adjustments are allowed.
In general, Korean branches of foreign corporations are taxed in the same manner as Korean subsidiaries of foreign corporations, with a few notable differences. While dividends paid by a Korean subsidiary to a foreign parent are subject to withholding tax, earnings remitted by a Korean branch to its overseas head office are subject to branch profits tax only when the Korean branch is required to pay branch profits tax under the relevant tax treaty. A Korean branch is allowed to deduct head office expenses allocated to it, whereas a management service agreement would be required to charge similar costs to a subsidiary. In addition, while a Korean subsidiary could qualify for tax benefits under the Foreign Investment Promotion Act and the Special Tax Treatment Control Law, a Korean branch is not eligible.
Capital gains derived by non-residents on the sale of shares in Korean corporations are either exempt from Korean tax under an applicable tax treaty or subject to withholding tax at the lesser of 11% (including local income tax) of the sale proceeds or 22% (including local income tax) of the capital gains. The purchaser is obligated to collect and pay the tax.
Capital gains arising from the sale of listed shares are not subject to capital gains tax to the extent the non-resident shareholder did not hold 25% or more of the total outstanding shares at any time during the year when the sale took place or the preceding five years.
Since Korea does not have an indirect capital gains tax, gains arising from the sale of shares of a foreign company that directly or indirectly owns shares of a Korean company are not subject to tax (indirect share transfer). However, the Korean tax authority may attempt to impose tax on gains arising from an indirect share transfer by applying the substance-over-form principle.
No special formulas are used to determine the income of foreign-owned local affiliates selling goods or providing services; the Transfer Pricing Guidelines would apply.
The Korean tax authority often challenges the deductibility of management service fees. In order to deduct the fees, the following conditions must be satisfied (under the Law for the Coordination of International Tax Affairs):
Where a Korean company borrows from its foreign controlling shareholder and the debt-to-equity ratio exceeds 2:1, interest exceeding such threshold will not be deductible and will be treated as a dividend (thin capitalisation rule).
Also, in line with the OECD’s recommendation on the limitation of interest expense deductions, Korea introduced a new rule that treats interest deductions as non-deductible to the extent net interest paid to foreign related parties exceeds 30% of adjusted net income. (For this purpose, adjusted net income equals earnings before interest, taxes, depreciation and amortisation.) Net interest expense refers to the total amount of interest paid on funds borrowed by a Korean company from all foreign related parties minus the total amount of interest income received by the Korean company from foreign related parties. If the resulting value is negative, the net interest expense will be deemed to be zero.
In addition, loans from foreign affiliates should be at arm’s length. Currently, the default interest rate (deemed arm’s length interest rate) for loans from a foreign affiliate to a Korean company is LIBOR (12 months) plus a 1.5% spread, and the default interest rate for loans from a Korean company to its foreign affiliate is 4.6%. If a separate transfer pricing analysis is conducted, the arm’s length rate can be determined based on such analysis.
As Korean companies are taxed on their worldwide income, their foreign source income is also subject to tax in Korea. However, taxes imposed by foreign governments on foreign income are creditable up to the amount of income tax to be paid in Korea. Any excess foreign tax credit can be carried forward ten years.
This question is not applicable in South Korea.
Although dividends from foreign subsidiaries are taxed in Korea, a foreign tax credit is available for any direct taxes paid with respect to such dividends.
An indirect foreign tax credit is also available for foreign income taxes paid by the foreign subsidiary in its country of residence. Only first-tier subsidiaries are eligible for the indirect foreign tax credit, and the Korean parent company must hold 25% or more of the shares of the subsidiary for at least six months prior to the distribution of the dividends.
Intangibles developed by Korean corporations can be used by or transferred to foreign affiliates. However, arm’s length consideration should be received for the transfer, and such consideration would be included in taxable income for corporate income tax purposes.
Korea has CFC rules designed to prevent Korean corporations from avoiding tax on income retained by foreign subsidiaries. The CFC rules apply when a Korean corporation directly or indirectly owns at least 10% of the shares of a company established in a low tax jurisdiction. For this purpose, a country is considered to be a low tax jurisdiction if the foreign subsidiary has an average effective income tax rate of 15% or less for the past three years. When applicable, Korea’s CFC regime deems the CFC to have paid a dividend to the Korean parent equal to the earnings of the foreign subsidiary. This dividend is included in the parent corporation’s taxable income.
A foreign corporation that is incorporated in a low tax jurisdiction and actively engages in business is not subject to the CFC rules. Furthermore, the CFC rules do not apply to a foreign branch of a Korean corporation.
Under Korean tax law, the substance-over-form principle applies to both domestic and foreign corporations, and there is no rule relating to substance that applies solely to foreign affiliates. The Korean tax authority tends to use this principle to disregard the immediate foreign recipient of the Korean source income and attribute such income directly to the parent company.
Capital gains arising from the sale of shares in a foreign affiliate are taxed as ordinary income to the Korean shareholder. Foreign taxes paid by the Korean shareholder on such capital gains are allowed as a credit (up to the amount of Korean income taxes paid).
Korean tax law contains substance-over-form rules, which are used by the Korean tax authority to re-characterise transactions and look through entities residing in favourable tax jurisdictions that are not deemed to be the beneficial owner of the Korean source income.
The NTS conducts periodic and non-periodic audits. Periodic audits typically take place every four or five years and are usually completed within two months, unless extended. In the case of periodic audits, advance notice should be provided 15 days prior to the commencement of the audit.
Non-periodic audits do not require prior notice, and can be conducted at any time. According to the NTS, taxpayers are selected for non-periodic audits in the following circumstances:
Upon completion of a tax audit, written notice of the audit results is provided. In the event of any objections, the taxpayer can request a Review of Adequacy of Tax Imposition (RATI) within 30 days of the receipt of such notice (before the final tax assessment is issued).
Korea has adopted most of the 15 BEPS action plans recommended by the OECD through amending relevant domestic laws and treaties, as follows:
The Korean government has implemented tax reform to boost economic growth through adopting the OECD BEPS measures. For instance, in alignment with the OECD recommendations, Korea strengthened anti-avoidance measures on BEPS Action 7 to prevent abusive business structures that might erode Korea’s tax base.
Since the launch of the OECD’s BEPS Project, the Korean government has increased efforts to comply with the BEPS standards. In addition, many non-governmental organisations have raised concerns over various schemes used by multinational companies to avoid paying taxes in Korea even when substantial revenue is realised in Korea.
Korea previously had tax incentives aimed at attracting foreign direct investment. However, in December 2017, the EU concluded that it was unfair that these tax incentives applied only to foreign investors, and placed Korea on its blacklist of non-co-operative jurisdictions. Korea revised its tax law to eliminate the disputed preferential tax exemptions, reflecting the Korean government’s efforts to comply with BEPS standards.
Korea is scaling back tax benefits for foreign direct investment and aggressively audits both foreign and domestic companies doing business in Korea, with frequent use of the substance-over-form rules to assess taxes. Korea has relatively high corporate income tax rates compared to other OECD countries, and is one of the few OECD countries that has increased tax rates in recent years. The government has also been consistently eliminating or reducing tax exemptions and deductions, so the tax base is quite broad. The increase in tax rates and the broadening of the tax base may make it more difficult for Korea to remain economically competitive.
Korea introduced a BEPS-driven rule that limits interest deductions for hybrid financial instruments. This rule has been effective since 1 January 2018, and applies to interest on cross-border hybrid financial instruments between Korean corporations (or Korean branches of foreign corporations) and foreign related parties.
Korea has a worldwide tax regime rather than a territorial tax regime.
This question is not applicable in South Korea.
The Korean tax authority handles treaty abuse by applying domestic anti-avoidance rules, such as the substance-over-form principle. Korea has also adopted the LOB (Limitation of Benefits) and PPT (Principal Purpose Test) provisions, which are aimed at ensuring a minimum level of protection against treaty shopping; therefore, additional scrutiny of cross-border tax planning arrangements is expected.
The 2019 tax reform introduced a new rule for determining arm’s length pricing in cross-border transactions involving intangibles, which also addresses appropriate remuneration for functions performed (ie, the development, enhancement, maintenance, protection and exploitation of intangibles). The comparable uncontrolled price (CUP) method, the profit split method and the valuation method (discounted future cash flows) became effective on 12 February 2019 and take precedence over other transfer pricing methods, and companies performing functions and assuming relevant risks regarding the development, enhancement, maintenance, protection and exploitation of intangibles should receive appropriate remuneration for the contributions they have made.
In light of this tax reform, additional scrutiny is expected on the transfer pricing of intangible assets.
According to the OECD, CbC Reporting Compilation of Peer Review Reports (Phase 1), Korea has indicated that measures are in place to ensure the appropriate use of information in all six areas identified in the OECD Guidance on the appropriate use of information contained in CbC reports. In other words, Korea uses CbC reports to assess high-level transfer pricing risks and other BEPS-related risks. As of September 2020, Korea exchanges CbC reports with 77 countries. Korea does not make information received from other jurisdictions available to the public. Since CbC reports provide substantial information to the tax authority that could be used to assess whether companies have BEPS-related issues, these reports may trigger aggressive tax audits and tax assessments.
Korea has already amended the VAT Law by introducing an extraterritorial VAT regime for electronically supplied services. Under this regime, a foreign entrepreneur who supplies certain electronic services in Korea bears the obligation to report and pay VAT. For this purpose, "electronic services" includes the supply of electronic goods, such as game/audio/video files or software; advertising posting services; cloud computing services; intermediary services enabling the lease/use/consumption of commodities or facilities in Korea; and the supply of goods or services in Korea.
According to the Ministry of Economy and Finance, the Korean government has proactively adopted OECD BEPS recommendations and will follow the OECD’s long-term plan on digital taxation. With respect to whether Korea will adopt an interim unilateral measure like the UK’s digital services tax, the Korean government clearly indicated that a prudent approach should be taken by analysing any impact on related industries and tax revenue.
Korea has not introduced any general provisions dealing with the taxation of offshore intellectual property that is deployed in Korea. However, where a tax treaty which Korea has concluded determines the source of royalties based on the location of use of such royalties, certain intellectual property (eg, patents) that is registered outside Korea but deployed in Korea can be subject to Korean tax.