고정사업장과 부가가치세 납세의무 = Permanent Establishment and Value-Added-Tax Liability

다국어 초록 (Multilingual Abstract)

This paper aims at exploring what effects the existence of permanent establishment(hereinafter ‘PE’) in direct taxation has on the value-added-tax(hereinafter ‘VAT’) liabilities of non-resident businesses. This issue relates to whether the PE in direct taxation can be treated as taxable person in VAT context, whether the concept of PE as proxy for the place of supply can be interpreted in the same manner as general fixed establishment(hereinafter ‘FE’) in VAT context and whether the intervention of PE in VAT context can be distinguished from the attribution of PE in direct taxation. The results taken are as follows.
The PE in direct taxation may not be constructively treated as taxable person in VAT, the grounds of which are as follows. First, the PE is not treated as person even in direct taxation, that is merely part or parcel of person. A taxable person in VAT is also based on the concept of person, which includes individual, corporation and any body of persons. Second, Dependent agent as PE can not be independent on the perspectives of remuneration and employer’s liability. The economic activities of dependent agents may not be carried on its own name and accounts, which function as another sign of dependency. Third, even branch as typical example of PE can not be counted as independent from headquater in respect of legal-and-economic risks and rewards, unless other special situations exist. Fourth, the subsidiary of foreign parent company in itself can not be treated as PE, but that is not the case only if the subsidiary meets the prescribed requirements thereof through other activities. However, even in this case, it belongs to another issue whether the PE status of subsidiary can be treated as taxable person in VAT context.
The Supreme Court of Korea designated the most-important-and-essential-part test(hereinafter ‘MIEP test’) as allocation standard of VAT jurisdiction in case non-resident business carries on its economic activities through the domestic PE in direct taxation context. If the domestic PE fulfills the most important and essential part of supply, the PE shall be counted as intervening FE in VAT and the supply shall be treated as VAT taxable transaction. The MIEP test may well be interpreted in line with EU VAT directives context, the guidelines from which are as follows. A FE of the taxable person shall be taken into consideration only when it is characterized by a sufficient degree of permanence and a suitable structure in terms of human and technical resources to enable it to make the supply of goods or services in which it intervenes. When a foreign taxable person has a domestic fixed establishment where the VAT is due, that establishment shall be considered as not intervening in the supply of goods or services, unless the technical and human resources of that fixed establishment are used by him for transactions inherent in the fulfillment of the taxable supply of those goods or services before or during this fulfillment. Where the resources of the fixed establishment are only used for administrative support tasks such as accounting, invoicing and collection of debt-claims, they shall not be regarded as being used for the fulfillment of the supply of goods or services. However, if an invoice is issued under the VAT identification number of the fixed establishment, that fixed establishment shall be regarded as having intervened in the supply of goods or services, unless there is proof to the contrary. When several domestic PEs involve the specific supply of goods or services, it shall be additionally reviewed whether they function as a single coherent whole. A taxable person has discretion in electing tax-invoices-issuing FE among domestic FEs. And it should be noted that the factors other than MIEP test can determine the place of supply as domestic, even though the domestic PE can not meet MIEP test.
The VAT collection issues follow the VAT jurisdiction issue. The former issues ...

참고문헌 (Reference)

1 이은총, "외국법인 고정사업장 과세 관련 쟁점에 대한 소고- 고정사업장 성립 이후 문제되는 실무상 쟁점을 중심으로 -" 한국국제조세협회 34 (34): 75-104, 2018

2 박윤준, "외국기업 고정사업장에 대한 부가가치세 과세문제의 연구" 한국국제조세협회 36 (36): 125-215, 2020

3 윤지현, "비거주자가 하는 국내 용역공급의 부가가치세 과세체계에 관한 연구 - ‘사업자 간(B2B) 거래’를 중심으로 -" 한국국제조세협회 34 (34): 87-145, 2018

4 박준형 ; 김혜진, "디지털 용역거래에 있어 법인세법상 고정사업장(PE)과 부가가치세법상 국내사업장(FE)의 개념구분 및 구체적인 인정요건에 대한 고찰 – 최근 프랑스 국사원의 Value Click 판결을 중심으로 –" 한국국제조세협회 38 (38): 137-183, 2022

5 조일영, "국내은행이 SWIFT(Society for Worldwide Interbank Financial Telecommunication, 국제은행 간 금융통신조직)로부터 제공받은 이 사건 외환거래 메시지 전송용역이 외국법인이 국내에서 공급하는 용역에 해당하여 국내은행이 부가가치세 대리납부의무를 부담하는지 여부(2006. 6. 16. 선고 2004두7528, 7535 판결：공2006하, 1375)" 법원도서관 (61) : 2006

6 Kaloline Spies, "Permanent Establishment versus Fixed Establishment：The Same or Different?" Journal Articles & Opinion Pieces IBFD 71 : 12-, 2017

7 OECD, "Model Tax Convention on Income and on Capital 2017 (Full Version)" OECD Publishing 2019

8 Reimer Rust, "Klaus Vogel on Double Taxation Conventions" 2021

9 OECD, "International VAT/GST Guidelines" OECD

10 Ad van Doesum, "Fundamentals of EU VAT Law" Wolters Kluwer 2020

11 Benn Terra and Julie, "A Guide to the European VAT Directives Vol. 2"