외국법인 고정사업장 과세 관련 쟁점에 대한 소고- 고정사업장 성립 이후 문제되는 실무상 쟁점을 중심으로 -

Abstract

Recently, in taxation practice, there has been an increasing trend to assess corporate income tax (CIT), value-added tax (VAT), and additional tax based on the premise that a domestic permanent establishment (PE) of foreign corporation has been established. This seems to be due to the fact that the Korean tax authority, the National Tax Service (NTS), is trying to exercise more aggressive taxation rights in line with the efforts made by the OECD to regulate the tax avoidance of multinational corporations. In this regard, it is necessary to sort out the issues that are frequently encountered in practice. Even if a PE of a foreign corporation exists, since the source of income under the Corporate Income Tax Law and the income attributable to the PE under the relevant double tax treaty are independent concepts, it is appropriate to only attribute income to the PE that is related to the business directly performed by the PE in Korea. Furthermore, solely based on the fact that a foreign corporation has established a PE in Korea, it is difficult to conclude that all transactions are subject to VAT in Korea based on the premise that the fixed place of business is a party to all transactions between the foreign corporation and its domestic counter parties. On the other hand, as long as the NTS bears the burden of proof with respect to the calculation of the arm's length price under the International Tax Coordination Law, the burden of proof in relation to attribution of income to a PE should also be borne by the NTS in principle. In addition, from the perspective of a transacting party of a foreign corporation, it is difficult to determine whether the foreign corporation has established a PE in Korea. Therefore, even if there is a future tax assessment based on the establishment of a PE in Korea, unless there are other special circumstances, a justifiable cause should be broadly interpreted in order to minimize transacting parties from becoming subject to penalties. In addition, it is desirable to operate the taxation practice to determine intent in a narrow manner in relation to tax offenses.