디지털 용역거래에 있어 법인세법상 고정사업장(PE)과 부가가치세법상 국내사업장(FE)의 개념구분 및 구체적인 인정요건에 대한 고찰 – 최근 프랑스 국사원의 Value Click 판결을 중심으로 –

Abstract

Recently, the French Supreme Administrative Court (“Conseil d'État”) held that a French subsidiary, established to provide marketing services to its Irish parent, a digital advertising service provider, was 1) a dependent agent permanent establishment (“PE”) for under the French Corporate Income Tax (“CIT”) because it had the authority to enter into a contract on behalf of the parent 2) a fixed establishment (“FE”) under the French Value Added Tax (“VAT”) despite the lack of physical facilities in France because of the activities of the French subsidiary’s employees related to the supply of services provided by the Irish parent to its customers. It is worth noting that the above conclusions by the Conseil d’Etat are the opposite to those of the Administrative Court of Appeals just an year ago when the court denied the existence of a PE under the CIT and a FE under the VAT for digital services based on the traditional interpretation of the relevant provisions. Building on the analysis underlying the Conseil d’Etat decision, this article presents a refocused conceptual basis for determining the existence of a PE and FE that takes into account the practical challenges of analyzing the provision of services purely via electronic means by a foreign company. In particular, the following three recommendations are made. First, to appropriately analyze the existence of a PE under the CIT and/or a FE under the VAT in the context of digital service transactions, the key consideration should not be on the existence of physical facilities such as data centers and servers; rather the main focus should be on the various human activities conducted through or in addition to the online platform through which the electronic services are provided. Second, even if the actual provision of services to customers is conducted via technological platforms, human activities that are closely related to the provision of electronic services should also be regarded as activities that create an FE for VAT purposes. In this context, human activities that are conducted even prior to the actual provision of the electronic services, such as activities leading to the conclusion of a contract, should be considered the supply of services for VAT purposes. In addition, the activities, such as information input, data delivery and transmission, that contribute to the fulfillment of the contracted electronic services should be considered the supply of services, and thus, sufficient to create an FE. Third, in view of the function and role of the FE for the purpose of VAT, if the human activities are closely related to the provision of electronic services, for FE purposes such activities do not have to be essential and material to the provision of services, as may be required to establish a PE for CIT purposes. An FE for VAT purposes can be deemed to exist if human resources have contributed to the ultimate supply of services and such resources are sufficient to trigger the collection of taxes and issuance of a VAT tax invoice on a direct (versus a proxy) basis.