필라1과 필라2 관련 최근 논의의 동향과 시사점

Abstract

OECD’s Inclusive Framework proposed two approaches as a more in-depth discussion on tax issues in the digital economy among the 15 Action Plans of the BEPS project. One of them is Pillar 1, a rule aimed at distributing taxing rights to market countries that serve as consumption roles. Another is Pillar 2, a Global Anti-Base Erosion(GloBE) rule that requires multinational enterprise groups to pay additional taxes for the insufficient tax amount when the tax rate in several countries of multinational enterprise is less than 15%. In the case of Pillar 1, which deals with the issue of distribution of taxation rights, it can be evaluated that the progress of discussions is relatively delayed compared to Pillar 2, as the interests of countries such as the EU and the United States became sharply intertwined during the initial introduction process. Criticism has been raised that the consolidated sales standard and pre-tax profit margin standard used to determine the application of Pillar 1 are arbitrary standards without theoretical basis. Also, Amount A, a key element of Pillar 1, is also considered undesirable because it appears to involve subjectivity to limit its application based on sales and profitability standards. It would be more reasonable to make all companies in a multinational corporate group subject to Pillar 1 and make the entire profits of multinational companies subject to Amount A distribution. Amount A of Pillar 1 stipulates that the obligation to eliminate double taxation is imposed based on the return on depreciation and payroll. However, it seems difficult to find the rationality of judging countries subject to double taxation elimination based on the return on depreciation and payroll and the validity of the standard for dividing countries into three stages to distribute the burden of double taxation elimination. In the case of Amount B, judgment on ‘baseline marketing and distribution activities’ will be very important, but its meaning is not clear, so it is judged to be difficult to apply in practice. Amount B uses a pricing matrix to calculate the normal price more simply. At this time, in the case of OES that is considered, there may be an incentive to apply a high arm’s length price through the selection of accounting treatment for operating expenses. Therefore, there are some doubts about the rationality of the arm’s length price calculation method according to the pricing matrix. In the current tax treaty system, the taxing rights of the source country are recognized only when a permanent establishment with physical substance exists in the source country of the foreign corporation. However, in the case of Pillar 1, taxing rights are created even if there is no permanent establishment of the multinational corporate group in the individual market location country, so there is a conflict between the current tax treaty and Pillar 1. Therefore, it would be necessary to revise the tax treaty to allocate taxing rights according to the application of Amount A of Pillar 1. In the case of Pillar 1, the issue of distribution of taxation rights may be the most important issue, so the question of how to set the distribution standard may be raised significantly. Pillar 2 can be evaluated positively in that it can minimize discrimination in tax policies or tax treaties between countries and prevent excessive tax competition, but there are still limits to completely eliminating tax competition between countries where tax rates above the global minimum tax are applied, and there is a problem of excessive tax cooperation costs for taxpayers and tax administration costs for tax authorities. It is necessary to continuously review and prepare measures to reduce taxpayers’ tax cooperation costs and tax administration costs that are essential to the benefits of implementing Pillar 2. The Qualified Domestic Minimum Top-up Tax(QDMTT), which is a method of applying Pillar 2, which can exclude the direct application of the Income Inclusion Rule and the Under Taxed Payments Rule, will be an effective and efficient method to settle later in case the entity paying the additional tax is unreasonable. Therefore, it is essential to proactively consider the enactment of QDMTT. Pillar 2, designed to mitigate international tax competition through introductions of a global minimum tax stands in contrast with the foreign income exemption system, whose aim is to enhance corporate competitiveness by lowering the tax burden on foreign income. These two frameworks exhibit a fundamental divergence in their legislative purpose. Considering the relationship between the global minimum tax applied when implementing Pillar 2 and the minimum tax under the domestic corporate tax law, it would be more desirable to reconcile any discrepancies in the specific provisions of related regulations or differences in statutory tax rates. In relation to the top-up tax amount under Pillar 2, there may be cases where the assignment of the tax liability to a particular entity may be deemed unreasonable. Consequently, it is necessary to review concerning the allocation of the top-up tax within multinational enterprises groups under the Pillar 2. Should the top-up tax be levied in accordance with Pillar 2, and there is tax already paid to a foreign country, it would be reasonable to consider this as foreign tax paid by Korea. This amount should then be considered for deduction when the Korean parent company receives dividends. The current approach to calculating the foreign tax credit limit, known as the territory credit limit, contradicts the foundational principle of Pillar 2. Pillar 2 imposes taxation on a consolidated basis across jurisdictions within a group of multinational enterprises. Therefore, transitioning to a global credit limit method, which aligns with Pillar 2‘s overarching framework, would be advisable.