[판례평석] 해외금융계좌 신고의무자가 이중거주자인 경우 “거주자” 개념의 해석 ：대법원 2025. 4. 17. 선고 2024마6881 판결

초록

In a recent Supreme Court decision concerning the obligation to report overseas financial accounts (Supreme Court Decision dated April 17, 2025, Case No. 2024Ma6881), the Court held that even if a taxpayer who is a dual resident of Korea and another country, is ultimately determined to be a resident of the other country under an applicable tax treaty, the taxpayer is nonetheless subject to the overseas financial account reporting obligation so long as he or she also qualifies as a Korean resident. In the Subject Decision, the Supreme Court applied a mechanical line of reasoning, holding that once a person falls within the definition of a “resident” under the Income Tax Act, administrative penalties may be imposed regardless of the person’s ultimate non－resident status under an applicable tax treaty. However, this conclusion is open to challenge on several grounds. First, considering that the primary purpose of the overseas financial account reporting is to prevent tax evasion through the concealment of offshore assets by domestic residents, it is questionable whether it is appropriate to subject individuals who are ultimately determined to be non－residents under a tax treaty to the reporting obligation. From an interpretative perspective as well, although the Supreme Court’s reasoning is internally coherent, it remains possible—if the concept of resident under the Income Tax Act is interpreted more flexibly and purposively—to argue that individuals determined to be non－residents under a tax treaty should not be subject to the overseas financial account reporting obligation or related administrative penalties. Moreover, when viewed in light of recent government policy trends concerning reporting obligations and penalty enforcement, the Subject Decision appears to run counter to such trends. In particular, it is noteworthy that in the United States, in a case presenting circumstances nearly identical to those at issue here, a court (albeit at the trial level) held that the taxpayer was not subject to the overseas financial account reporting obligation. This foreign precedent offers a meaningful point of comparison. The Subject Decision is significant in that it strictly distinguishes between the overseas financial account reporting obligation under domestic law and the determination of tax residency under tax treaties, and adopts a restrictive interpretation of the scope of tax treaty application. Nonetheless, it is regrettable that the Court did not reach a different conclusion by adopting a more purposive interpretation that takes into account the legislative intent of the law and the manner in which it has been administered and developed over time.

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