공격적 조세전략의 사전신고 의무제도 도입방안에 관한 연구 ―BEPS 프로젝트 Action 12와 관련하여―

OECD recommended to adopt Mandatory Disclosure Regime(MDR) to respond aggressive tax planning through cross-border arrangement by BEPS Action 12 final report in 2015. The main purpose of MDR(mandatory disclosure) is letting tax authorities get timely, comprehensive and relevant information on potentially aggressive or abusive tax planning strategies and to identify the promoters and users of those schemes. All scholarly theses recently published in Korea agree to accept this regulation. However, in order to introduce the MDR efficiently, we must consider the scope and application within current tax system and strive for the effects what OECD and EU council directives aimed. EU council directives 2018/822 after OECD BEPS Project Action 12 final report imposes the primary obligation on intermediaries to file information on reportable cross-border arrangements but imposes the obligation on taxpayers to file only in special circumstances. However, OECD recommends countries to decide between two options-whether either the promoter or the taxpayer has the obligation to disclose or both of them have the obligation to disclose separately. Moreover, OECD emphasizes the importance striking a balance between ensuring the information is clear and useful and avoiding undue compliance burdens for taxpayers. Therefore, this study showed following methods for more concrete and practical solution of possible problems at the time of introduction of these rules based on OECD BEPS reports and EU council directives, and the examples of UK and the US comparing the Korean theses recently published. We first need to decide what types of schemes and arrangements should be disclosed under the regime (i.e. the definition of what is a “reportable scheme”) For this purpose, it would be more effective designating hallmarks for reportable cross-border transactions instead of setting the concepts of what is considered aggressive tax schemes or tax avoidance. Additionally, tax authorities should consider to upload examples of aggressive tax planning cases. Tax authorities must designate primary obligation on relevant taxpayers but impose the exceptional obligation on intermediaries at some cases. The time period for reporting also should be to provide early information on avoidance schemes and their users and to deter the use of those schemes then the time-frame within which a disclosure has to be made will be important in achieving these objectives as the earlier the reporting, the more quickly a tax administration can act against a scheme. Thus, if the primary obligation belongs to promoters or intermediaries, it should be before selling the strategies and if the duty belongs to taxpayers, it should be the contract time between intermediaries and taxpayers. Finally, penalties (including non-monetary penalties) to ensure compliance with mandatory disclosure regimes should be consistent with their general domestic law including Constitutional principles to cope with taxpayers’ situation.