BEPS 체제하에서 원천지국 과세권 확보를 위한 원천징수제도 검토

This article aims to review the withholding system as an alternative to secure tax power of a source country on its revenue under the BEPS regime. One goal of the BEPS projects is to restore the taxable income which vanished or was relocated into tax havens into the source countries or residence countries where the substantial economic activities have arisen. Among the BEPS action plans, Action 1(Addressing the Tax Challenges of the Digital Economy) and Action 2(Neutralising the Effects of Hybrid Mismatch Arrangements) are meaningfully related with the withholding system that is a effective way to secure the taxation in source countries. Action 1 proposes five solutions to solve the tax challenges of the digital economy. The adoption of the withholding system is recommended as the second best plan, not the best one, and its mechanism was introduced in the Brauner&Baez paper published in 2015, for example, the withholding mechanism for the b2b transaction and b2c transaction. For the digital transaction, the best way to harmonize OECD’s basic position with protecting Korea-sourced revenue is setting up the conception of the digital PE first and operating withholding system complementally. For Action 2, commentators, not the BEPS plan, suggest the withholding tax as one of the solutions to solve the hybrid mismatch. OECD advises to deny the expense deduction to a payer country primarily and include payee’s income as taxable one in a payee country in case that the payer country never does anything to solve non-double taxation arising from the hybrid instrument, hybrid entity, hybrid transaction. This recommendation, however, could be disadvantageous to Korea in that a tax burden in Korea may increase because it does not consider which country has the base erosion and why that erosion happens. It just suggests the ways to prevent the double non-taxation. In this regard, some commentators in Korea recommend the adoption of withholding system instead of accepting OECD's recommendations to prevent the double non-taxation since Korea already has the well-established withholding tax system. The withholding tax system is advantageous in that countries are able to get similar effects intended in BEPS plans without adopting complicated recommendations in BEPS Action plans and asking for other countries' cooperation instead of denying benefit.