고정사업장 판정과 관련한 최근 국제동향의 분석 = 한국 및 인도 판결 등을 중심으로

다국어 초록 (Multilingual Abstract)

Based on recent court cases in Korea and India (Bloomberg case in Korea, Whirlpool case and Morgan Stanley case in India) concerning permanent establishment (“PE” hereafter) taxation, this study provides policy suggestions in view of international taxation on foreign corporations.
First, in Bloomberg case, certain equipments of a subsidiary of foreign corporation, which rarely falls on PE taxation, were judged not to perform “essential and important” business activities and, as a result, tax authorities’ interpretation to consititue such equipments with therein business activities as a PE was judged to be illegal. This judgement shows that the “conservative” interpretition of PE is supported by the court.
Next, in Whirlpool cases, even a branch of foreign corporation, which is deemed to be a PE in most tax treatries, was judged not to meet the requirements of PE if therein business activities are remarkably limited. This judgement shows the “strict” tendency in PE application.
Finally, in Morgan Stanley case, a related enterprise of foreign corporation, which hardly falls on PE taxation, was judged not to constitute a PE even when therein business activities are quite brisk with other foreign related enterprises, and rigorous condition of its own business activities was required to become a PE. This judgement shows the court’s “reserved” attitude toward taxation tendency to enlarge the range of PE.
Summing up these cases, in spite of the tax authorities’ positive taxation tendency based on PE in many countries, it was proved to be current international trend that their courts keep up the conservative, strict and reserved interpretaion of PE requirements.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 고정사업장 관련 조세조약 규정의 분석
• Ⅲ. 고정사업장 관련 국내외 사례의 분석
• Ⅳ. 결론
• 〈참고문헌〉
• 〈Abstract〉

참고문헌 (Reference)

1 오윤, "외국펀드와 조세회피" 한국학술정보(주) 2008

2 전병욱, "외국법인의 국내 고정사업장과 관련한 과세문제의 연구－Bloomberg Limited Partnership의 사례를 중심으로－" 한국세무학회 9 (9): 139-165, 2008

3 최인순, "외국법인 국내사업장에 대한 조세조약 적용 가능성 검토" 2008

4 이창희, "세법강의 제6판" 박영사 2007

5 국세청, "비거주자.외국법인의 국내원천소득 과세제도 해설"

6 김인근, "국제조세의 이론과 실무 제7판" (주)광교이택스 2007

7 이창희, "고정사업장의 과세" 한국세법학회 13 (13): 216-259, 2007

8 Willimans, R.L., "Permanent Establishments in the United States, in Income Tax Treaties" 1978

9 Skaar, A, "Permanent Establishment: Erosion of a Tax Treaty Principle" Deventer 1991

10 한승희, "OECD 국제조세 지침의 기본성격" 2007