조약입법례로 본 이중비과세 대응방안

The original purpose of a tax treaty between two countries is to prevent double taxation. However, sometimes tax treaties venture too far, albeit not intentionally, and cause double non-taxation. Double non-taxation issues arise sometimes due to the interaction of two countries’ internal laws and are unrelated to their tax treaty provisions - for instance, cross-border tax arbitrage. However, in far more situations, international tax disputes involving double non-taxation are triggered by tax treaties. As such, this paper focuses on the double non-taxation caused by tax treaties. As many tax treaties were entered into after the OECD model convention was finalized, there have been attempts to ban double non-taxation through interpretations of the OECD model convention provisions. However, such interpretations alone could not provide a mechanism preventing various types of double non-taxation and, each tax treaty has deviated from the OECD model convention. And besides, a variety of special bilateral treaty provisions has been adopted to prevent double non-taxation. While the single best solution to the problem of double non-taxation, if any, has not been found yet, a thorough understanding of different types of double non-taxation would lead to measures appropriate to each type of double non-taxation. If there is any intentional double non-taxation provision, the problem may be rectified by simply removing the provision. Unintended double non-taxation clauses may have to be rectified by adding a separate or supplemental clause. A model provision reflecting a uniform tax policy and a form consistent throughout the global treaty network system would reduce hassles in designing such separate or supplemental clause that each treaty negotiation should suffer in the absence of such model. From this perspective, this paper is suggesting a single model solution that could be effective for different types of double non-taxation.