국제조세법의 체계와 그 개편방안에 관한 연혁적 고찰

Almost a century has passed since the first introduction of model tax treaties as a result of efforts by the League of Nations to relieve the burden of double taxation. During the last century, international trade and investment increased rapidly with the institutional support from tax treaties and the global economy truly became one market. Along with the increase in international trade, the number of international tax disputes also rose steeply in Korea. From the mid-2000s the dispute cases not only increased in number and size, but they also became more complex and sophisticated. Several leading Supreme Court decisions were rendered, various foreign tax rules were adopted into the tax system, and continuous amendments have been made. Even though international tax law has now become one of the main fields of tax law in Korea following the adoption of new tax laws and an accumulation of relevant court decisions, the definition and general structure of international tax law have not yet been further reviewed. The International Tax Coordination Law (“ITCL”), the Income Tax Law (“ITL”), the Corporate Income Tax Law (“CITL”) and tax treaties are some of the main international tax laws in Korea. Generally, basic taxation principles regarding the taxpayer, tax base and taxing methodology, along with rules for adjusting double taxation are stipulated in the ITL or CITL, whereas rules to prevent tax avoidance schemes are stipulated in the ITCL. Though the basic framework of international tax law in Korea does not have serious defects, miscellaneous or peculiar provisions are scattered in separate tax laws, rules allowing for the application of tax treaties are generally stipulated in the ITL and the CITL, while relevant procedural provisions are also scattered throughout the abovementioned laws. Even more, these international tax related provisions scattered across various laws mainly focus on income tax, whereas international tax rules with respect to property tax or consumption tax are very scarce. The enactment of the ITCL in 1995 set a major milestone for the development of international tax law in Korea, and there has been notable changes to the international tax field since then. Now that a quarter century has passed, it is a good time to revisit the structure of international tax law for possible modifications. Meanwhile, there has also been an initiative to change the traditional international tax rules recently. In the past, international taxation focused on transactions of tangible goods that take up the space of certain places for to determine whether to tax physical elements, and fixed places to determine whether to tax human elements. However, as digitalization of international transactions have accelerated in the 21st century and as it is becoming increasingly easier for taxpayers to travel, the significance of fixed places of human and physical elements has decreased. Along with this phenomenal change, it has also been pointed out that multinational corporations (“MNC”) avoid tax through. Base Erosion and Profit Shifting (“BEPS”). The OECD responded to this with the BEPS project and brought forth 15 Action Plans. In particular, instead of revising the pre-existing bi-lateral treaties, the OECD introduced the Multilateral Instrument to implement the changes for tax treaties and proposed to establish an Inclusive Framework, especially for issues regarding the digital economy as a Post-BEPS project. It is expected that a new set of international tax rules would be introduced to change the existing frame of international tax, and it is expected that Korea would adopt a number of such new tax rules. This paper analyzes the characteristics of international transactions and reviews international tax law focusing on international income tax law, while examining international property tax, international consumption tax and international tax procedure law as separate areas. This paper also seeks ways to reform and divide the existing international tax laws into basic international tax law, adjustment of double taxation law, and prevention of tax avoidance law. These types of revisions to the structure of international tax law will not only help facilitate a reasonable systemization of existing international tax laws, but they will also help create a basis for adopting new international tax rules into our own international tax structure in an efficient manner. In view of such goals it is specifically recommended that first, we incorporate basic international tax provisions regarding the taxpayer, tax base and method of taxation in the ITL and CITL. Second, rules related to adjusting double taxation and preventing tax avoidance schemes should be transferred to the ITCL. Moreover, in the long term, procedural rules in the ITL, CITL and ITCL should be separated from the other rules and enacted in the International Tax Procedure Law. Lastly, domestic tax laws related to tax treaties should be aggregated into a special law concerning tax treaties. Upon such reorganization of these laws, international tax law of Korea would have a complete system of the ITCL, Tax Treaties, Tax Treaty Special Law, the International Tax Procedure Law and Basic International tax Laws such as the ITL, etc. With increase in transactions related to international property and consumption, it is necessary to expand, improve, and revise the basic international tax provisions of the Inheritance Tax and Gift Tax Law, as well as Value Added Tax Law. Also, in the long term, the adjustment of double taxation rules, prevention of tax avoidance rules and international tax procedural rules that are included in the separate laws above or newly introduced in the future can be transferred or supplemented into the ITCL etc., which remains a task to be studied in the future.