조세조약상 삼각관계의 과세문제

The OECD report refers to cases in which passive income such as dividends and interest income is problematic among triangular relationships involving permanent establishment as ‘typical triangular case’. In this article, the author examines the taxation problem of a typical triangular case. According to OECD reports and model tax treaty commentary, the country of residence(‘R’) is obligated to adjust double taxation on taxes levied in the country of source(‘S’) under the R-S treaty, and double taxation on the country of permanent establishment(‘PE’). In order for S to exercise its taxation rights, it must meet the taxation requirements of the R-S treaty. According to Article 11 of the Model Tax Treaty, S can exercise its taxation right, but it can only exercise it within the scope of applying a certain limited tax rate on the total income of interest income. On the other hand, since permanent establishment is not eligible for tax treaty, PE-S treaty can not be applied, and thus it is not necessary to meet the taxation requirements under the PE-S treaty. In this regard, there are many opinions that it is appropriate to comply with the PE-S treaty, not R-S treaty, but the dominant view is not yet. In a typical triangular case, PE must apply R-PE treaty. However, since interest income did not occur in the PE, Article 7 applies instead of Article 11 of the Model Treaty. In a typical triangular case, it is generally accepted in theory that PE is obligated to expand unilateral double taxation prevention measures imposed on local corporations in order to meet the anti-discrimination provisions of Article 24 (3) of the Model Treaty. The current issues of triangular case are as follows： will it be recognized to directly apply the PE-S treaty? How can we respond to tax avoidance transactions involving triangula case? To what extent PE will bear the double taxation adjustment obligation? In addition, as a related issue, there is a discussion on issue of permanent establishment sandwich transactions. The Model Treary commentary takes a position that the case shall be viewed as a bilateral case, not a triangular case. In the case of permanent establishment sandwich transactions, the problem can be solved by interpretation, but the other issues are generally required to be resolved by legislation. It is necessary to watch the trend of global discussions on triangular case with interest.