금융기관에 대한 고정사업장 과세
A study on the income attribution to permanent establishments of financial institutions
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Most tax treaties and domestic tax laws of the OECD countries stipulate that business profit of a non-resident corporation may be taxed only when it has a permanent establishment('PE') in the source country. In this juncture lots of discussions and ensuing detailed rules have been made on how to define situations where a non-resident corporation has a PE in the source country while those on the determination of income attributable to a PE have not be so hefty. The institutional efforts for that purpose started with the publication of discussion draft Ⅰ by the CFA of the OECD in 2001. At that time the new concept of KERT(key entrepreneurial risk taking) function represented the Working Hypothesis, which has evolved into the authorized OECD approach('AOA'). The discussion on the KERT began with banking industry. The KERT function as a human function which is accompanied with risk taking was very well suited to the context of banking businesses. As the discussion developed, the possibility of application of the KERT concept to other industrial sectors in a more extended manner was delved into. But the final report published by the CFA in the late 2006 came up with a new concept of significant people function('SPF') which replaced the KERT. In the meantime the final report still recommended the KERT concept to be used for banking, global trading and insurance. In this article the author made research on the rules for the income determination of PEs of banking, global trading and insurance under domestic tax laws of Korea. The research was reviewed with the concept of the KERT and the SPF. The current domestic laws were found to provide for the income determination of banking, global trading and insurance businesses in a more detailed manner. However its conceptual structure does not seem to be so refined - in other words - be based on such theoretical basis as the KERT. Although the KERT has its own shortcomings that it requires more compliance efforts than the current rules and retains somewhat uncertain concepts, they may be more than offset by the benefits from the elimination of possible double taxation and the enhancement of reasonableness. Procedural improvements inclusive of rules for documentation and onus of burden may do good for the reduction of uncertainty due to the introduction of some economic concepts.
Abstract
Most tax treaties and domestic tax laws of the OECD countries stipulate that business profit of a non-resident corporation may be taxed only when it has a permanent establishment('PE') in the source country. In this juncture lots of discussions and ensuing detailed rules have been made on how to define situations where a non-resident corporation has a PE in the source country while those on the determination of income attributable to a PE have not be so hefty. The institutional efforts for that purpose started with the publication of discussion draft Ⅰ by the CFA of the OECD in 2001. At that time the new concept of KERT(key entrepreneurial risk taking) function represented the Working Hypothesis, which has evolved into the authorized OECD approach('AOA'). The discussion on the KERT began with banking industry. The KERT function as a human function which is accompanied with risk taking was very well suited to the context of banking businesses. As the discussion developed, the possibility of application of the KERT concept to other industrial sectors in a more extended manner was delved into. But the final report published by the CFA in the late 2006 came up with a new concept of significant people function('SPF') which replaced the KERT. In the meantime the final report still recommended the KERT concept to be used for banking, global trading and insurance. In this article the author made research on the rules for the income determination of PEs of banking, global trading and insurance under domestic tax laws of Korea. The research was reviewed with the concept of the KERT and the SPF. The current domestic laws were found to provide for the income determination of banking, global trading and insurance businesses in a more detailed manner. However its conceptual structure does not seem to be so refined - in other words - be based on such theoretical basis as the KERT. Although the KERT has its own shortcomings that it requires more compliance efforts than the current rules and retains somewhat uncertain concepts, they may be more than offset by the benefits from the elimination of possible double taxation and the enhancement of reasonableness. Procedural improvements inclusive of rules for documentation and onus of burden may do good for the reduction of uncertainty due to the introduction of some economic concepts.
참고문헌 (13)
- "WP6 Progress Report to CFA on Project on Attributing Profits to PE" (2006)
- "WP6,Part Ⅰ of the Draft Report on the Attribution of Profits to PE Proposed Revision by the Secretariat" (2006)
- "WP6, Part Ⅱ - Special Considerations for Applying the Authorised OECD Approach to PEs of Banks" (2005)
- "WP6,Part Ⅲ : Special Considerations for Applying the Authorised OECD Approach to PEs of Enterprises Carrying on Global Trading" (2005)
- "WP6,Discussion Draft of the Report on the Attribution of Profits to a PE - Part ⅣⅣ(insurance)" (2005)
- "E-Commerce: Transfer Pricing and Business Profits Taxation", (10) (2005), OECD
- "Discussion Draft on the Attribution of Profits to PE-PartⅠ(General Considerations)" (2004), OECD
- "Transfer Pricing Guidelines for Multinational Enterprises and Tax administrations" (1995), OECD
- "Model Tax Convention on Income and Capital" (2005), OECD
- "Report on Attribution of Income to Permanent Establishment" (1994), OECD
- "The Taxation of Global Trading of Financial Instruments: A Discussion Draft" (1997), OECD
- "The Taxation of Global Trading of Financial Instruments" (1998), OECD
- "The attribution of profits to permanent establishments, cahiers de droit fiscal international", 91b (2006)