전자상거래에 있어서의 고정사업장 구성요건에 관한 연구

Abstract

Under any tax treaty, the business profits earned by the enterprise of a contracting state in the territory of the other contracting state is taxable by the other contracting state only to the extent that the enterprise has a permanent establishment(hereinafter referred as “PE”) in the other contracting state and the business profits are attributable to the PE. The requirements for the constitution of a physical type of PE are (i) the existence of a ‘fixed physical presence’, (ii) the use or control of the fixed physical presence by the enterprise, (iii) the carrying on the core business activities. To define ‘electronic commerce’ as the transaction in which the whole or partial procedures of a certain commercial transaction including, but not limited to, the conclusion of contract, payment of price, delivery of commodity or products transacted, advertising or promotion of the same, supply of information on the same are done in the manner of using electronic system or means, although the above requirements for the constitution of a PE that originated from non-electronic type of business are also relevant to an electronic commerce in its basis, the specific denotation of those requirements are to be separately explored and elaborated due to the special attributes of the electronic commerce. These works should be performed focusing on the function of the electronic means used in an electronic commerce. Since the use of the ‘computer server’ is unavoidable in entering and fulfilling any kind of electronic commerce, the requirements for the constitution of a PE in electronic commerce may be summarized as follows: (i) a ‘computer server’ should be installed and fixed to a specific place, (ii) the enterprise in question should have the right to use or control the same, and (iii) the use or control of the computer server should have the nature of core business activities. However, there might be some cases where it is difficult to apply the above basic principles in a manageable manner or it is not consistent with the ideal of the equitable taxation because the nature and modes of electronic means used in real world commerce are varying from case to case and some of them may be out of our common understanding in setting up the above principles. In these cases, the above principles should be applied flexibly and elastically, that is, modified or changed according to the specific attributes of the commerce in question. The modification or change should reflect the purpose of the rule that uses the concept of ‘carrying on business through a PE’ as the basis for the taxation of business profits. On the other hand, under the current level of technique of electronic commerce and the current rules on the dependant agent type of PE, it is hardly conceivable for an electronic means adopted in electronic commerce to constitute a dependant type of PE other than it constitutes a physical type of PE.