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August 11, 2021
2021-1497

Korea announces 2021 tax reform proposals

Executive summary

Korea's Ministry of Economy and Finance announced the 2021 tax reform proposals (the 2021 Proposals) on 26 July 2021. Unless otherwise specified, the 2021 Proposals will generally become effective for fiscal years beginning on or after 1 January 2022.

This Alert summarizes the key proposals.

Detailed discussion

Clarification of the deemed beneficial owner rules for overseas investment vehicles (OIV)

The current Korean tax law views an OIV as a deemed beneficial owner of Korean-source income if any of the following conditions are met:

(i) The OIV is subject to taxation in the jurisdiction in which it resides and there is no intention to wrongfully evade Korean tax on the Korean-source income by establishing the OIV in such jurisdiction.

(ii) The OIV is unable to substantiate its investors.1

(iii) The OIV is deemed as the beneficial owner under a tax treaty.

The 2021 Proposals clarifies the conditions of (i) and (iii) as follows:

(i) The OIV should be obligated to pay tax in their country of residence and be eligible for tax treaty benefits for the applicable Korean-sourced income in accordance with the tax treaty.

(iii) the OIV is recognized as the beneficial owner of Korean-sourced income by a separate provision in the tax treaty and is subject to the benefits of the tax treaty for the applicable Korean-sourced income in accordance with the tax treaty. The rule will be effective for Korean-sourced income paid on or after 1 January 2022.

Revision of the 30% EBITDA2 interest limitation rule

The current 30% EBITDA interest limitation rule provides an ordering rule for the calculation of non-deductible interest. If interest is calculated with different interest rates, the interest deduction denial is applied starting with the highest interest rate.

The 2021 Proposals introduce additional ordering rules for the non-deductible portion of interest:

  • For interest where the same interest rate is applied, the most recent borrowing date takes precedence.
  • If the interest rate and borrowing date are the same, the non-deductible portion is bifurcated based on the ratio of the borrowed amounts.

In addition, the 2021 Proposals introduce a new rule that if the amount of EBITDA is negative, the deductible amount of interest is deemed to be nil.

This rule will be effective for fiscal years beginning on or after 1 January 2022.

Introduction of new rules for international transactions

The 2021 Proposals introduce the following new rules to mitigate potential tax evasion through international transactions.

2021 Proposals

Details / submission due date

Effective date

New obligation to submit information regarding the status of a liaison office of a foreign company (e.g., basic information of the liaison office, status of foreign headquarters and other domestic branch, among others)

10 February of the following year

Effective for submissions of the status information relevant to taxable years beginning on or after 1 January 2022

New obligation to submit transaction details by foreign companies supplying electronic services

  • Simplified Value Added Tax (VAT) registrant maintains electronic service transaction details for five years after the due date of the final VAT return
  • Simplified VAT registrant is required to submit a transaction statement within 60 days of receiving a request from the Commissioner of the National Tax Service (NTS)

Effective for supply of electronic services on or after 1 July 2022

Establishment of grounds for ex officio cancellation of simplified VAT registration

The NTS Commissioner may cancel a simplified VAT registration if the registrant closes its business

Effective on or after 1 January 2022

  • The current Enforcement Decree of Adjustment of International Taxes Act applies a penalty for late or false filing of transfer pricing (TP) documentation (e.g., Master/local files, Country by Country Report, etc.) for the maximum penalty of KRW100 million (US$87,000).
  • The 2021 Proposals introduce new rules for reducing penalties for negligence for submitting revised or late TP documentation

30% to 90% reduction in penalties for the submission of revised or late TP documentation before the penalty is imposed

Effective for submissions of TP documentation on or after the enactment of the Enforcement Decree

Amendment to transfer pricing under special economic conditions

To rationalize TP taxation under special circumstances such as COVID-19, the 2021 Proposals revise the TP rules under the current Law for the Coordination of International Tax Affairs (LCITA).

LCITA

2021 Proposal

Effective date

Considerations when applying the arm's-length pricing method

  • Analysis of taxpayer's business environment and related transactions, selection of arm's-length price calculation method, selection of comparable transactions, among others
  • Data from multiple business years can be used if economic conditions or business strategies are affected over multiple years

Additional considerations when applying the arm's-length price calculation method in which companies that have suffered losses due to economic conditions such as economic downturn can also be selected for comparable transactions

Effective for decisions and corrections made on or after 1 January 2022

Determination and correction by tax authorities based on normal cost sharing

  • If a resident and a foreign related party enters into an agreement on cost, risk sharing, etc. in advance and jointly develop and secure intangible assets accordingly, if that share of cost differs from the normal cost sharing, it can be determined and corrected based on the normal cost sharing

Exceptions to decision and correction are accepted, if the cost is not shared as agreed upon due to force majeure, such as a disaster.

Extension of the deadline for submitting documents related to international transactions

The current Enforcement Decree of the Korean Corporate Income Tax Law (CITL) requires a permanent establishment (PE) of a foreign corporation to submit documents such as a statement of internal transactions, expense allocation, etc. for the transactions between a PE of a foreign corporation and its overseas headquarters and other branches within the statutory deadline for the CIT return.3

The 2021 Proposals allows an extension of the above submission deadline from the statutory deadline of CIT return to within six months from the last day of the month containing the fiscal year end date.

This rule applies to submissions made on or after 1 January 2022.

Extension of the application period for special taxation for foreign workers

Under the current Restriction of Special Taxation Act, a foreign executive or employee (excluding workers hired on a daily basis) initially working in Korea before 31 December 2021 may elect to apply for a flat tax rate of 19% (excluding local income tax) on wage income without deductions,4 for five years from the first day of work in Korea.

The 2021 Proposals extend the application period from 31 December 2021 to 31 December 2023.

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For additional information with respect to this Alert, please contact the following:

Ernst & Young Han Young, Seoul

Ernst & Young LLP (United States), Korean Tax Desk, New York

Ernst & Young LLP (United Kingdom), Asia Pacific Transfer Pricing Desk, London

Ernst & Young LLP (United States), Asia Pacific Business Group, New York

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ENDNOTES

  1. If the OIV is able to substantiate only a portion of its investors, then the OIV would be treated as the beneficial owner of the Korean source income to the extent of the Korean source income attributable to those investors that the OIV is unable to substantiate pursuant to the Korean domestic tax law.
  2. Earnings before interest, taxes, depreciation, and amortization (EBITDA) equals taxable income plus depreciation expense for fixed assets and net interest expense.
  3. A corporate income tax return must be filed within three months from the end of the fiscal year.
  4. Non-taxation, tax deductions, tax reductions/exemptions and tax credits are forfeited.
 

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