간주고정사업장 과세방법 재정립의 필요성 및 방법 - OECD 과세원칙을 중심으로 -

Abstract

In June 2008, the OECD published a final report (OECD Report) on the attribution of profits to permanent establishments (PEs) after discussions for almost ten years. The background for the OECD Report was that there had been considerable variations in the domestic laws and practices of the member countries regarding the taxation of PEs, and had not been a consensus among the member countries as to the correct interpretation of Article 7 (business profits) of the OECD Model Tax Convention which provides the method of taxation of PEs. The lack of a common interpretation of Article 7 can easily lead to the problem of international double taxation and non-taxation. In Korea, the same situation has long been occurred. Especially, there have been considerably different views between tax authorities and taxpayers on the taxation of the dependent agent PEs. This could originally be attributed to the lack of common and clear guidance for the taxation of PEs including dependent agent PEs in the tax treaties and domestic laws. In August, 1995, the National Tax Service issued an internal guidance designed to avoid tax conflicts with taxpayers for the taxation of the dependent agent PEs in which tax auditors were strongly recommended not to determine whether a foreign entity has a dependent agent but to determine whether the remuneration received from the foreign entity for the activity of a dependent agent is at arm’s length. However,as the guidance has inherent flaws regarding the status of legal power and so on, the taxation issues on the dependent agent PEs have continuously been emerged since then. In this regard, this study, first of all, examined the domestic laws and practices for the taxation of the dependent agent PEs in our country, and studied the differences between them and the OECD Reports. Then, this study reviewed the OECD Report through examples, and proposed the direction of the revision of relevant tax provisions on the basis of the OECD Reports.