WH Baik, Jeremy Everett
In the first half of 2017, Korea’s National Tax Service (NTS) continued its efforts to reach revenue targets despite an uncertain domestic and global political environment, write Woo-Hyun Baik and Jeremy Everett of Kim & Chang. Highlights included the impeachment of former President Park, after many months of large-scale peaceful demonstrations, and the election (on May 9 2017) of President Moon Jae-in, representing the Minju (Democratic) Party.
The new government's tax policy has already proven to be substantially different from the prior administration, with proposed tax law amendments that feature increases in corporate income tax rates, individual income tax rates, new limitations on interest deductibility, new limitations on the use of net operating loss carry-forwards, the elimination of various tax incentives, and a substantial broadening of the foreign bank account reporting requirements.
The National Assembly will review the proposed amendments and is expected to pass them before December 31 2017, though some changes are expected. The bulk of the amendments should be effective from January 1 2018. The following highlights are worth noting.
For well over a decade, Korea has been consistently decreasing its corporate income tax rates to be more competitive with other OECD countries. In a dramatic return to the past, the Moon Administration has proposed adding a new 27.5% corporate income tax bracket for income in excess of KRW 200 billion ($177 million) to help fund increased spending on social welfare programmes. Details are as shown in Table 1.
|CITL||Corporate Income Tax Law|
|IITL||Individual Income Tax Law|
|ITCL||International Tax Coordination Law|
|NTBL||National Tax Basic Law|
|STTCL||Special Tax Treatment Control Law|
|VATL||Value Added Tax Law|
|Current corporate income tax rates (including local income tax)||(Proposed change) Addition of 27.5% rate for taxable income over KRW 200 billion (including local income tax)|
(Application) Tax years commencing on or after January 1 2018.
Over the past decade, Korea increased the NOL carry-over period from five years to 10 years in an effort to provide support for companies suffering from increased losses during the global financial crisis. The previous (Park) administration took initial steps to scale back the benefit of the ten year NOL carry-forward period by establishing an 80% annual cap on taxable income that can be offset by an NOL carry-forward. The Moon administration is seeking to further eliminate the benefit of NOL carry-forwards by dramatically decreasing the cap, first to 60%, from January 1 2018, and then to 50%, beginning in 2019, as described in Table 2.
|NOLs can be carried forward up to 10 years and used to offset up to 80% of taxable income in each carry-forward year.----The 80% cap does not apply to small and medium size enterprises (STTCL-PD §5①), or companies under rehabilitation and bankruptcy proceedings.||
(Proposed Change) Gradual reduction from 80% cap to 50% by 2019
• Annual deductible limit for NOL carry-forwards: 60% of taxable income (for tax years beginning January 1 2018) and 50% (for tax years beginning January 1 2019)
The existing excess retained earnings tax regime was enacted in 2015 to stimulate consumption by incentivising investments in new assets, salary increases and dividend distributions. It is scheduled to expire on December 31 2017. As the Moon administration believes the previous tax regime was ineffective in meeting its stated objectives, a new regime is proposed that would tax excess retained earnings at a 20% rate (rather than the current 10% rate) while eliminating the ability to reduce the amount of earnings subject to the tax by paying dividends or purchasing land. Like the previous regime, the proposed amendment is temporary and provides a 2020 expiration date, as described in Table 3.
Excessive retained earnings tax: Introduced in 2015 to encourage companies to stimulate consumption through investments in assets, salary increases, and dividend distributions.
• corporations with net assets exceeding KRW 50 billion
• members of conglomerate groups subject to cross-shareholding restrictions
• Applicable tax rate: 10%.
• Corporations may choose Method A or Method B below. (This choice cannot be changed for the following three years.)
Method A: [Current year income × 80% - (qualifying investments + (150% × qualifying salary increases) + mutual cooperation contributions + (50% × dividends paid))] × 10%
Method B: [Current year income × 30% - ((150% × qualifying salary increases) + mutual cooperation contributions + (50% × dividends paid))] × 10%
(Salary multiplier increases to 200% for salary increases for young full-time employees.)
• Please note that if qualified expenditures (i.e. investments, salary increases, and dividend distributions) in a relevant year exceed current year income multiplied by the usage ratio (80% for Method A; 30% for Method B), the excess can be carried over to other tax years to reduce earnings that would otherwise be subject to the tax.
• Eligible mutual cooperation contributions:
i) Contributions to mutual cooperation fund
ii) Contributions to small and medium size corporation’s employee welfare fund
iii) Contributions to joint employee welfare fund
• Salary increases for employees earning more than KRW 120 million are excluded.
Expires December 31 2017.
• Applicable tax rate: 20%
• Corporations may elect either Method A or Method B below:
A: [Current year income × 60-80% - (qualifying investments + (150% × qualifying salary increases) + (300% × mutual cooperation contributions))] × 20%
B: [Current year income × 10-20% - ((150% × qualifying salary increases) + (300% × mutual cooperation contributions))] × 20%
• Dividend distributions and investments in land are no longer qualifying expenditures.
• Usage ratio to be decided by Presidential Decree (Method A: 60~80%; Method B: 10~20%).
• Current year income exceeding KRW 200 billion excluded from taxation
(Salary multiplier increases to 250% for salary increases for young full-time employees and to 200% for salaries paid for newly created jobs)
• Salary increases for employees earning more than KRW 70 million excluded.
• (Interim carry-forward) Any excess expenditures carried over based on the previous regime can be used to offset current year earnings.
(Application) Tax years commencing on or after January 1 2018. The provision is to expire on December 31 2020 (i.e., at end of tax year that includes December 31 2020).
Historically, Korea has capped interest expense deductions for related-party loans or loans from unrelated parties guaranteed by offshore related parties at three times equity (or six times in the case of qualifying financial institutions). This debt/equity threshold was lowered under the Park administration from 3:1 to 2:1, and the Moon administration seeks to further limit interest expense deductibility by introducing an entirely new cap set at 30% of adjusted taxable income, as described in Table 4.
|Thin capitalisation rule: If borrowing from a foreign controlling shareholder exceeds twice the equity invested by the foreign controlling shareholder (six times in case financial institutions), interest attributable to the excess borrowing is not deductible.||
• Interest expense deductions will be denied to the extent of the greater of: (1) the amount denied under the current thin capitalisation rules, and (2) net interest expense in excess of 30% of adjusted taxable income.
For this purpose, adjusted taxable income and net interest expense are defined as follows:
• Adjusted taxable income: taxable income plus depreciation on fixed assets and net interest expense.
• Net interest expense: Total interest paid to foreign related parties less total interest received from related parties (as defined in the International Tax Coordination Law).
(The new limitations will not apply to financial and insurance businesses.)
(Application) Tax years commencing on or after January 1 2019.
True to campaign pledges, President Moon's administration has proposed a dramatic increase in individual income tax rates, featuring an increase of the top rate to 46.2% for income in excess of KRW 500 million and a 44% tax rate for income in excess of KRW 300 million, as outlined in Table 5.
|Tax brackets and rates (including local tax)||(Proposed change) lower ceiling on current top tax bracket and create new top marginal rate|
(Application) Applies to tax years beginning on or after January 1 2018
Under the Park administration, foreign accounting reporting requirements were put in place for taxpayers with an aggregate account balance exceeding KRW 1 billion at the end of any given month. The Moon administration has expanded the scope of this reporting regime to cover all taxpayers having an aggregate account balance exceeding KRW 500 million at the end of any given month.
On June 7 2017, Korea signed the MCAA, the latest step in the BEPS project. Approximately 45 of Korea's 91 tax treaties will be revised in the wake of Korea signing the MCAA. The revisions will become effective three months after both Korea and each contracting state submit their ratification instruments to the OECD (on the beginning of the month following the three-month ratification period). The MCAA will give rise to the following changes:
As the digital economy continues to grow, Korea has joined many countries around the world in seeking to adopt new tax laws or change the way existing laws and bilateral tax treaties are interpreted to aggressively tax IT companies.
As an initial step, the NTS has been conducting tax raids in which dozens of auditors show up at the taxpayer's place of business without advance notice with the intent to temporarily seize documents, files, and personal computers for further investigation. These tax raids have been conducted with the goal of deeming global IT companies as having a taxable nexus (a permanent establishment) in Korea. Once a permanent establishment (PE) is deemed to exist, the NTS attributes revenue recognised outside of Korea to such PE and imposes corporate income tax, VAT and penalties on such revenue.
In determining whether a PE should be deemed to exist, the NTS tends to focus on the existence of a server or core equipment in Korea as well as the involvement of Korean personnel in core functions that go beyond ancillary support services.
Both the National Assembly and President Moon's new administration have announced their intention to pursue new legislation and new policy initiatives aimed at both combatting aggressive tax planning and further taxing the digital economy. They are particularly focused on taxing deemed PEs of multinational IT companies with global revenue from cloud-computing or internet-based services and comparatively small tax revenue reported in Korea. It is also expected that the Korean government will continue to consider methods to impose VAT on the provision of IT services from outside Korea.
The new customs duty law enforcement regulations, which became effective on July 1 2017, provide that certain taxpayer-initiated transfer pricing adjustments (both upward and downward) may give rise to additional customs duties or refunds. This will be accomplished by allowing importers to file provisional import customs declarations. Taxpayer-initiated adjustments under the transactional net margin method may be potentially eligible for the provisional import entry system. In order to qualify for this program, however, importers should have a valid advance pricing agreement (APA) or ACVA (the customs equivalent of a unilateral APA) and submit the following transfer pricing-related documents for further review:
South Korea's President, Moon Jae-in, was sworn into power in May 2017 and he is determined to address the social issues in his country. These issues include an aging population that will require healthcare and social services to look after it. There is also the issue of rising inequality in South Korea. This was highlighted in the abuse of power scandal that led to the impeachment of Moon's predecessor, Park Geun-hye. In August 2017, Samsung heir Lee Jae-yong was sentenced to five years in prison.
Lee's conviction is not the only sign of big business behaving in an unethical manner. In the past year, Daewoo Shipbuilding & Marine Engineering (DSME), one of South Korea's major corporations, was at the centre of an accounting scandal. This scandal was in relation to the overstatement of profits for certain years. Ko Jae-ho, the former CEO of DSME, was sentenced to 10 years imprisonment for his involvement in the scandal.
Moon came into power on a wave of popular support for change in South Korea. His administration has proposed an increase in the minimum wage for South Korean workers over a five-year period. It hopes that this will help tackle the country's income inequality. This policy, along with others that address other social issues and welfare costs, will lead to greater government spending.
Moon's administration will have to increase the country's tax base to get the necessary revenue. In August 2017, the South Korean government proposed to increase the tax rates. Corporate tax will rise from 22% to 25% for companies with revenues in excess of KRW200 billion ($177 million) per year. Income tax will rise from 38% to 40% for individuals who earn more than KRW300 million. There will also be an income tax rise from 40% to 42 % for those earning more than KRW500 million.
Moon hopes that these proposed tax increases will reduce the dominance of South Korean conglomerates and help with his administration's welfare agenda.
EY Han Young
10-2 Taeyoung Bldg,
Seoul, Korea 150-777
Tel: +82 2 3787 6600
South Korea Tax Leader
Min Yong Kwon
Tel: +82 2 3770 0934
Business Tax Services
Dong Chul Kim
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Jeong Hun YouTel: +82 2 3770 0972
Global Compliance and Reporting
Jang Kyu Shin
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International Tax Services
Kyung Tae Ko
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Seung Yeop Woo
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Jin Hyun Seok
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Sang Min Ahn
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Kim & Chang
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Seoul 03170, Korea
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Contact: Woo-Hyun Baik, leader of tax practice
LS Yongsan Tower
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Seoul 04386, Korea
Sung-Chun Ko, Tax Leader
Tel: +82 2 709-0725
Alex Joong-Hyun Lee
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Yoon & Yang LLC
18th, 19th, 22nd, 23rd, 34th Fl., ASEM Tower
Seoul 06164, Korea
Phone: +82 10 5353 4790
Main areas of focus:
Corporate Tax, Mergers & Acquisitions, Transfer Pricing, International Tax & Permanent Establishments, Indirect Tax, Customs, Private Clients, Global Mobility, Tax Controversy, Tax Technology
Parnas Tower 38F
521 Teheran-ro, Gangnam-gu
Seoul 06164, Korea
Number of Lawyers: +300
Tel: +82 2 528 5200
Other offices: Jakarta, Beijing, Ho Chi Minh City, Hanoi, Yangon, Moscow
Kyung Geun Lee
Senior Tax Attorney
Tel: +82 2 528 5238
Sug In Shim
Certified Public Accountant (CPA)
Tel: +82 2 528 5484
|Corporate Income Tax||22%||A B|
|Capital Gains Tax||22%||A B C|
|Branch Tax||22%||A B|
|Net Operating Losses (years)|
|Branch profits tax||0%||N/A||D|
|Royalties from, for example, patents, know-how||0%||E|
A) This is the maximum rate.
B) Local income tax (formerly referred to as resident surtax) is also imposed at a rate of 10% of corporate income tax payable before offsetting tax credits and exemptions.
C) Capital gains are included in ordinary taxable income for corporate tax purposes.
D) This tax is imposed on income that is remitted or deemed to be remitted by a Korean branch of a foreign corporation. The branch profits tax may be payable if the foreign company is resident in a country with which Korea has entered into a tax treaty and if the treaty requires the imposition of a branch profits tax. For a list of these countries and the rates of the tax. The branch profits tax is imposed in addition to the income tax imposed on branches.
E) For payments to domestic corporations and foreign corporations with a place of business in Korea. For withholding rates applicable to payments to foreign corporations that do not have a place of business in Korea.
F) Only small and medium-sized enterprises are entitled to carry back losses.
G) Except for small and medium-sized enterprises and certain other companies (for example, companies under court receivership), the annual deductibility limit for loss carryforwards is 80% of taxable income.
H) Interest subject to 15.4% withholding tax
Tae Kyoon Kim is the head of tax services at Bae, Kim & Lee. He works together with Wee Soo Han and Tae Chul Kwak. The team comprises accountants and lawyers with strong expertise in tax consultancy.
Established in 1980, the firm covers all areas of tax, including auditing, planning, transfer pricing, securities, litigation, M&A deals and cross-border transactions. With more than 500 professionals, Bae, Kim & Lee has a presence in China, Hong Kong, Vietnam, Myanmar and the UAE.
CEO Jung Hee Lee oversees the tax practice at Deloitte Anjin. He has impressive expertise in a broad spectrum of tax affairs, including corporate tax, M&A deals and transfer pricing. Lee has more than 30 years of experience in accounting and international tax.
With almost 50 partners and nearly 400 other professionals, Deloitte has one of the biggest tax departments in South Korea. Recent additions to the practice include directors Won Seok Jeon, Tae Gi Kim and senior managers Joo Hyuk Lee, Hong Ryul Yang and Jae Hyung Lee. The firm maintains friendly relations with the Korean tax authorities.
The South Korean firm offers the complete range of tax services, including business tax, controversy, M&A, cross-border transactions, incentives and management consultancy. The practice caters to a diverse client base from key sectors such as financial services; manufacturing; energy and technology, media and telecommunications (TMT).
Managing partner Min Yong Kwon is the head of tax at EY, and Kyung Tae Ko is the international tax service leader. Other distinguished partners include Jin Hyun Seok, the head of transactions; Yon Pyo Lee, who oversees compliance; and Dong Chul Kim, the head of business tax services.
With 21 partners and 287 other tax professionals, the EY team provides bespoke solutions to clients. This includes liaising with the South Korean tax authorities. The firm offers the full range of tax services, including compliance, restructuring, transfer pricing, tax controversy and supply chain management. This remit extends to operating model effectiveness (OME).
Based in Seoul, the team serves a diverse client base including major companies in the oil and gas, financial services, life sciences, mining and metals sectors.
Attorneys Woo Hyun Baik and Buyung Moon Jung lead the tax practice at Kim & Chang. As the largest South Korean law firm, the tax team comprises 28 partners and nearly 140 other tax professionals. This includes a mix of lawyers and accountants.
Baik has more than 30 years of experience in the field. He specialises in providing comprehensive tax advice on securities, debt and equity, structured finance and financial instruments such as derivatives. Before joining the firm Jung served as a judge at the Supreme Court. He has a wealth of knowledge in tax treaties, auditing and tax controversy.
Kim & Chang offers clients the full range of tax services, covering such areas as corporate tax, planning, M&A, restructuring, auditing, controversy and dispute resolution. The firm's remit extends to corporate governance and anti-corruption measures, transfer pricing, advance pricing agreements (APAs) and mutual agreement procedures (MAPs).
The firm draws major domestic and international clients from key sectors like defence, construction, engineering, technology and financial services.
The tax group at Lee & Ko is overseen by Jay Shim. He has extensive expertise in tax auditing, appeals and litigation, working closely with the firm's corporate practice on infrastructure and development projects. Key focus areas include overseas investment, offshore fund formation, energy and natural resources.
The practice is composed of four major parts: corporate tax, audits, dispute resolution and customs duties. As part of its corporate tax services, the team offers clients assistance with inheritance tax, planning, audit defence, transfer pricing issues and APAs.
Lee & Ko draws major domestic and international clients from important sectors such as finance, aviation, real estate, high-tech and defence. The firm assists clients from the US, China and Japan.
Tax leader Seong-Cheon Ko oversees Samil PwC's tax practice in South Korea, which, with 57 partners and 480 other professionals, is one of the largest in the country. He has a broad palette of expertise in international and corporate tax, particularly with regard to Japanese companies investing in South Korea.
The tax practice offers advice and support in all areas of tax, including compliance, structuring, cross-border transactions, M&A and litigation. The team's core expertise covers transfer pricing, controversy, dispute resolution, corporate tax and customs duties.
PwC says it represents approximately 40% of the Korean market in terms of tax revenue among the Big 4 firms. The firm's client base spans major areas such as financial services and R&D projects. The firm's tax specialists also serve as external advisers to the Korean government and the tax authorities.
As part of the team's participation in public life, Henry An holds a leadership role in the American Chamber of Commerce, while another partner Alex Joong-Hyun Lee works with the European Chamber of Commerce.
Partner Byung Choon Ihn is the tax leader at Samjong KPMG, working alongside the head of tax Jeong Wook Choi and transfer pricing leader Gil Won Kang. With 26 partners and 386 other fee earners, the Korean practice offers the full suite of tax services, including compliance, due diligence, disputes, international tax, trade, indirect tax and customs duties.
From its headquarters in Seoul, KPMG has a multidisciplinary practice in Korea and serves major sector leaders in finance, energy, manufacturing and consumer goods. Overall, the international accounting firm has more than 2,600 professionals based in South Korea.
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Choon Cho and Hyeon-Jin Kim are the co-heads of the tax group at Shin & Kim. Cho specialises in tax disputes, insurance and customs duties, whereas Kim focuses on trusts, estates and criminal litigation. The group comprises accountants and lawyers.
With six partners and 15 other tax specialists, Shin & Kim provides a wide range of tax services covering such areas as capital markets, inheritance planning and hostile takeovers. Recent additions to the team include customs consultant Cheolhwan Kim and associate Seoyoun Cho.
Along with a strong regional network, Shin & Kim has offices in Beijing and Shanghai, as well as Ho Chi Minh City, allowing the practice to provide services across Asia. This gives the firm a wide international scope.
Oh-Young Jeon is the head of tax at Yoon & Yang. His expertise covers advice in M&A, FDI, customs duties and transactions. Recent additions to the practice include advisers Duk Joong Kim and Irene Kim, who were both at the national tax commission before joining the firm.
The team comprises 12 partners and 21 other tax professionals, offering an extensive range of services such as international and corporate tax, due diligence, transfer pricing, dispute resolution and litigation.
Outside of South Korea, Yoon & Yang has offices in Vietnam and Uzbekistan from which the firm provides services to clients in Central Asia and Southeast Asia. Key markets include Russia, Kazakhstan, Laos, Cambodia, Indonesia, Thailand, Singapore and Malaysia.
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The tax practice comprises 40 partners and 43 other professionals, offering an extensive range of tax services, such as international tax, corporate tax, due diligence, transactions, foreign direct investment (FDI), dispute resolution and litigation. The firm's remit covers M&A deals, inbound and outbound structuring, compliance and audit defence.
Yulchon serves a diverse client base, including major international and Korean companies from sectors such as oil and gas, financial services, TMT, automotive and defence. The firm has represented clients such as Hyundai, Deutsche Bank and Goldman Sachs.