국제조세회피 행위의 대응방안에 관한 연구 - 조세피난처 이용행위를 중심으로 -

The capital transactions through tax havens continues to be raised as a question on the rational taxation method from both the source country and the resident country's side, regarding to capital export to tax havens as well as capital import via those places, so that the comprehensive discussion is needed on the current regulations and agreements on the international capital trade to avoid tax. This study reviews the improving methods of the whole domestic and international taxation including the regulation on the international taxation and adjustment at home and the countermeasure taxation against tax haven according to the taxation agreements abroad. The findings in sum are as follows. The improving measures on the concept of tax haven are reviewed. First, it is desirable to be united into the tax rate standards in comparison with tax burden rate, not being as the dual standards for determining tax haven based on income and tax rate approach based on effective tax rate. Second, the tax rate standard is reasonable to be determined by an effective tax rate as long as a deemed dividend derives from dividend-receivable retained earnings pre-tax net income. That is, the deficit carried over generated 5 business years ago should be deducted. Third, like Japan, in terms of the governing law, South Korea should revise the law on the calculation of the corporate real income under the domestic regulations even in order to determine, if any, whether the calculation is 'remarkably' different from home comparing to the resident country's way. Fourth, the current 15% tax rate which is a heavy burden of taxation according to the tax rate determining standard of tax haven should be lowered to more than 20% or 25% according to the global standard. In respect to capital export, the enhancement of countermeasures conducted by the resident country against the international avoidance of tax is reviewed. First, if applying the previous price to the transactions with certain foreign corporations, taxation of tax haven should be under the regulation of dual taxation adjustment: to standard the real price not the previous one in case to calculate retained earnings of the certain foreign corporations. Second, in terms of the concept of the domestic stockholders as the controlled foreign personal holding companies and persons subject to withholding, the current regulation which is based on voting stocks determining the controlling requirements should be revised adding standards such as the total amount of stock issue and stock value. Third, in terms of taxation treaty and real taxation principle, those should be above all, based on the principle of special act and newly stipulated act priority, while it is reasonable to recognize treaty override in limited latitude according to the domestic legislation in consistence with the intention of legislator if it is clear for the domestic acts to be stipulated against the certain treaty such as the special regulation on withholding at source for non-residents and foreigners. Fourth, the controlling territory principle is difficult to be recognized as the formal residence determining principle but is necessary to review to be introduced as the additional determinants on the headquarters territory principle. Fifth, the case law stipulates the burden of proof belonging to the taxation institution by proving the legality of the taxation treatment through consistent methods, while the conversion of the proving burden can be considered in the limited latitude with the designated tax haven countries due to the difficulties of the capture of tax sources on offshore transactions. Additionally, in terms of capital import, the improving measures of taxation in source countries are as follows. First, the marginal profits from transferring stocks are generated usually in accordance with the resident country's taxation, leading to the tax avoidance via tax haven, so that the way to expand the taxation within the source country should be sought. Second, in terms of the expanded application of the special institution on withholding process targeting non-residents or foreign corporations, besides Labuan in Malaysia, the non-cooperative tax haven countries designated by OECD should be additionally applied in accordance with the legislation intention of this institution. Third, if conducting the core business for the actual, consistent, repeated operation activities for profits such as consulting, investment advice, and post-sale service and delivery regardless of business places or document records, those places should be considered as permanent establishments preventing the tax avoidance via tax haven with the expanded regulation of the concept of permanent establishment. Fourth, in order to strengthen the international cooperation of taxation business such as information exchange and agreement on taxation intelligence, currently the treaties have been limited to the signing of agreements on the general taxation information so that the international cooperation is urgent to realize those agreements.