조세조약상 일반적 상호합의의 법적 성질과 제도적 개선방안

The Mutual Agreement Procedure(MAP) as dispute settlement method in tax treaties comprises two forms: the specific case MAP, in which competent authorities try to resolve specific taxation disputes with a view to the avoidance of taxation incompatible with the treaty; and the general case MAP, in which competent authorities try to resolve difficulties or doubts on the interpretation or application of the treaty. From the perspective of public international law, the general case mutual agreement(MA) can constitute a subsequent agreement between the treaty parties for the application and implementation of treaties, and as such is similar to the ‘gazette level treaty’ in terms of the Foreign Ministry’s treaty practice. From the internal law perspective, the general case MA has the effect equivalent to implementing regulation of statutory law. When it comes to the limits of an MA, as implementing regulations exceeding the delegated remit of law are ineffective, it is not legally tenable to adopt a general case MA which cannot be reconciled with treaty provisions or substantially amends, or which changes the treaty provisions. The role of the court is important as the final interpreting authority on tax treaties and domestic tax law. When the legal effect of a general case MA is in question, the court should not disregard those MAs which are adopted to resolve difficulties or doubts on the interpretation and application of treaties in accordance with the appropriate process under treaties and domestic law, and which are within the permissible construction of treaty provisions. For the purpose of improving the general case MAP system, the following recommendations are proposed. First, with a view to enhancing the transparency of the general case MA, the MA should be published without delay and the Korean translation of the English version of MA should be attached for the convenience of the taxpayers. In addition, though the general case MA is designed to clarify treaty interpretation, it should indicate the application period in order to provide the taxpayers with greater predictability. Second, a Joint Commission on MAPs should be established between treaty parties so that the MAP will be operated in a systematic and regular manner, thereby effectively addressing and preventing treaty related disputes. Third, as the new Art. 3, para. 2 of the 2017 OECD Model Tax Convention provides, an MA on undefined treaty terms will outweigh references to domestic law, which strengthens the legal status of the MA. So, the government may consider adopting the new provisions in future treaty negotiations, or instead amending Art. 5 of the Coordination of International Tax Act to that effect. Fourth, as supervisory authority of the MAP, the Ministry of Economy and Finance should, if necessary, advise the National Tax Service on the direction of MAPs to ensure the appropriate interpretation and application of tax treaties.