글로벌최저한세 ‘신고 후 조정’ 규정의 이해와 적용국면 분석 및 관련 문제에 관한 소고

Abstract

This article discusses the provisions regarding “Post-Filing Adjustments” under Article 68 (Post-Filing Adjustments and Tax Rate Changes) of Section 2 (Calculation of Top-Up Tax) in Chapter 5 of the Adjustment of International Taxes Act. It analyzes the specific circumstances in which these provisions apply, examines whether any tax-related inconsistencies arise in the process, and provides opinions on several related issues. Unlike Korea’s Corporate Tax Act, which typically handles post-event increases or decreases in corporate income through a retroactive approach, the “Post-Filing Adjustments” provisions under the Global Minimum Tax adopt a prospective approach for increases to covered taxes, while maintaining a retroactive approach for decreases. This adjustment method is unfamiliar in the context of Korea’s current legal framework. The commentary on the OECD model rules justifies the adoption of the prospective approach for increases in covered taxes by arguing that, although the calculations may not be as accurate as those under a retroactive approach, this method significantly simplifies the computation of Top-up taxes under the Global Minimum Tax. Furthermore, it is argued that these adjustments generally do not pertain to situations that would have avoided Top-up tax liabilities in prior years. However, this rationale is not entirely convincing. The prospective approach could result in variations in the obligation and amount of additional Top-up tax liabilities depending on the fiscal year in which the increases occur, which creates an inquitable outcome. The timing of these adjustments for a foreign entity can directly impactthe additional Top-up tax liabilities of the domestic parent or other domestic entities, raising fairness concerns. Furthermore, the combination of both prospective and retroactive approaches in the “Post-Filing Adjustments” provisions raises concerns when comparing cases involving both decreases and increases for the same fiscal year or when these adjustments occur in different fiscal years. The fact that the Top-up tax liability can vary solely based on the timing of these adjustments raises concerns about the fairness of such outcomes. Given these challenges, the prospective approach not only presents inherent issues, but also complicates matters when used alongside a retroactive approach. A more rational solution would be to uniformly apply a retroactive approach to both increases and decreases. However, since the Global Minimum Tax rules are a globally adopted common approach based on the OECD model rules, it may be inevitable to adopt the current “Post-Filing Adjustments” provisions. Nevertheless, within the scope of predictability, efforts should be made to establish guidelines in advance to resolve unclear interpretations and address unreasonable issues.