Post - BEPS 환경을 기반으로 한 조세조약 상 분쟁해결 방안에 대한 소고

Abstract

The residency rules under the Income Tax Act play a key role, as they define the scope of tax liability. The OECD, on October 5, 2015, released its package of final reports from its base erosion and profit-shifting (BEPS) project, which cover all 15 action items of the BEPS action plan, to combat abusive corporate tax avoidance for multi-national corporations. Recognizing that the changes introduced by the BEPS Project may lead to some uncertainty and increase double taxation without action, treaty-related disputes, and mutual agreement procedure disputes in the short term; the importance of removing double taxation as an obstacle to cross-border trade and investment is being magnified. Therefore, the final report on Action 14 (improving dispute resolution mechanisms) of the OECD’s BEPS project discusses and suggests the changes to the OECD Model Tax Convention and Commentary to increase the effectiveness of the mutual agreement procedure (MAP) in resolving treaty-related disputes. As suggested by the final report on Action 14, the Korean government will be required to amend tax treaties and local tax regulations in compliance with the minium standards of this report. The elements of the minimum standards suggested by the final report on Action 14 are related to three general objectives as follows: first, MAP-related treaty obligations are fully implemented in good faith and that cases are resolved in a timely manner; second, administrative processes promote the prevention and timely resolution of treaty disputes; and third, taxpayers meeting the requirements of Article 25, Paragraph 1, of the Model Convention can present his case and can have access to MAP. The key changes suggested by BEPS Action 14 can be explained in two perspectives: first, the protection of the taxpayers’ accessibility to MAP; second, the significance of tax administrative procedures for the implementation of MAP. In these two perspectives, this study closely analyses the elements of the minimum standards suggested by BEPS Action 14 to increase the effectiveness of MAP and, by extension, Korea’s current MAP system. With respect to the taxpayers’ accessibility to MAP, Korea should implement the corresponding adjustment in the tax treaties to amend the provision relating to MAP in tax treaties and to resolve the transfer pricing disputes in order for the taxpayer to request for MAP in both the residence country and the source country. From the perspective of tax authorities, tax administration should be independent from tax auditors’ influence and be graded on the indicators relating to MAP such as the number of MAP cases resolved and the time spent for resolution, rather than revenue or sustained audit adjustments. In addition, the tax authorities should provide the transparent MAP process in public by announcing the guidance containing the information on how to access and use MAP. Finally, this study suggests the necessity of mandatory arbitration as being a support plan for MAP, which is unfamiliar in Korea’s tax practice under current international circumstances.