고정사업장 삼각관계(PE triangular cases)의 이중과세 조정- 조세조약의 적용을 중심으로 -

One of the most important functions of international taxation is the adjustment of double taxation. The tax treaties have a well-established system for adjusting double taxation when two countries are involved, but in the case of PE triangular cases, where three countries are involved, such as the residence state(“state R”), the source state(“state S”) and the state where the permanent establishment is installed(“state PE”), there are insufficient regulations for adjusting double taxation. In this article, assuming that a resident of state R receives interest from a resident of state S through a permanent establishment in state PE, we examined the double taxation adjustment of the typical PE triangular cases(“A-B-C cases”) and the modified PE triangular cases(“A-B-A cases”). A-B-A cases have the same situation as the A-B-C cases, except that State R and State S are the same. First, in the A-B-C cases, if interpreted in accordance with the OECD Model Tax Convention and its commentaries, state R must adjust double taxation on the tax paid in state S and state PE. It seems somewhat unnatural for state PE to derive the legal principle of deducting the tax paid to state S from the principle of Non-Discrimination of tax treaties between state R, but it is reasonable to exercise tax rights in the order of state S → state PE → state R. In the next A-B-A cases, there are pros and cons as to whether the state PE is obligated to deduct the tax paid to state R(= state S). Both theories have only partial validity because they do not fully consider that state R also serves as state S and only emphasize the status of either state R or state S. However, under the current OECD Model Tax Convention and its commentaries, there is no explicit basis for state PE to deduct the tax paid in state R(= state S), so in terms of interpretation I have no choice but to support the negative theory. However, all-or-nothing measures that state PE does not fully or at all deduct the tax paid to state R(= state S) cannot satisfy both contracting countries, so efforts should be made to find a reasonable solution through Mutual Agreement Procedure. Furthermore, in order to eliminate uncertainty due to the distribution of taxable rights, it is desirable to have a separate regulation that stipulates to give state R the right to taxation corresponding to the limited tax rate under the tax treaty between state R and state PE.