Pillar 1 및 Pillar 2에 따른 국제조세 환경의 변화

In the context of the OECD-led Base Erosion and Profit Shifting (BEPS) project, ‘Digital Economy’ emerged as a crucial topic for the formation of a new order in the international tax system, referred to as the ‘Pillars’ (Pillar 1 and Pillar 2). Throughout the BEPS project, the OECD, through various reports, diagnosed issues of tax avoidance by multinational enterprises operating in the digital economic environment. These issues were identified as occurring in the aspects of harmful tax competition, permanent establishment rules, and transfer pricing rules, where multinational enterprises leverage information technology, the internet, and intangible assets in their economic activities. With a shared understanding of the need for modifications to international tax rules, the OECD introduced the concept of Pillar through reports in 2019 and 2020, marking the beginning of BEPS 2.0. Pillar 1 and Pillar 2 were eventually established as new international tax rules through a comprehensive implementation framework and consensus. Pillar 2, which establishes a global minimum tax, could serve as a minimum standard applied uniformly across countries, despite variations in their respective tax systems, potentially mitigating harmful tax competition. In broad terms, Pillar 2 examines whether the effective tax rate falls below the minimum tax rate. If so, countries adhering to Pillar 2 can tax the shortfall in accordance with ‘IIR’ and ‘UTPR’ rules applicable to all relevant countries following Pillar 2. Anticipating the impact of Pillar 2 implementation in South Korea, it is projected that the exercise of taxing rights for additional tax revenue may not see a significant increase, considering the composition of multinational enterprise groups operating within Korea. However, for cases where Korea, as the jurisdiction of the ultimate parent company among multinational enterprises, is subject to Pillar 2 and the effective tax rate falls short in a country where investments have been made, there could be a consequence of not benefiting from the tax policy incentives agreed upon in that country in advance. Therefore, it is crucial for such corporations of Korea where there is a jurisdiction of the ultimate parent company, to monitor whether the relevant country legislates ‘QDMTT’ system and whether the enacted legislation aligns with ‘QRTC’ among GloBE rules. Furthermore, the provisions of Pillar 2 allow for the deduction of salaries and intangible assets in the calculation of additional tax, suggesting that concentrating human resources and intangible assets in a specific country may be advantageous from the perspective of multinational enterprises. However, the actual impact is likely to be relatively modest. In terms of legal assessment, an issue arises concerning the incompatibility of international accounting standards used in the GloBE profit and loss calculation process with our legal system. While Pillar 2 implementation is effective in addressing situations where MNEs exploit differences between low-tax and high-tax countries, tax competition among countries with rates above the minimum tax rate is expected to persist. Evaluating Pillar 2 as a significant improvement over existing transfer pricing rules, especially in terms of addressing transfer pricing issues, appears challenging. Instead, Pillar 2 may expand disputes over the appropriateness of arm’s length pricing based on the principles of independent enterprises, as it adheres to these principles while broadening the jurisdiction of the competent authority to adjudicate on normal pricing. Pillar 1 revolves around the allocation of taxing rights to market jurisdictions and is primarily comprised of Amount A, which addresses excess profits, and Amount B, outlining transfer pricing rules for baseline activities arising from marketing and distribution. Amount A allocates a portion of the excess profits, exceeding Amount B, as taxable income to market jurisdictions. However, recognizing that Amount A does not exclude existing international tax rules, a safe-harbour clause is necessary to be introduced to eliminate double taxation. This clause takes into account depreciation of tangible assets and wage-related profits. For Amount B, it involves determining the arm’s length price through a novel method that aligns with the typical baseline marketing and distribution activities of independent enterprises. The standard profit rate (operating profit/sales), referred to as the ‘benchmark profit rate,’ is identified based on a pricing matrix created according to the classification of products (industrial sectors) and the business structure of the enterprise (asset and cost ratio relative to sales). This benchmark profit rate undergoes adjustments based on several factors. Considering the scope of application, the influence on South Korean multinational enterprise groups by the jurisdiction of the ultimate parent company may not be significant under Amount A. However, if South Korea gains prominence as a market jurisdiction for digital goods and services, it is anticipated that South Korea’s taxable income under Amount A will increase. While there may be disputes over indicators used in determining the consumer jurisdiction, it is deemed not to be grave. Nevertheless, disputes related to transfer pricing rules, as with Amount A, could also arise. The safe-harbour clause, while recognized for its necessity in eliminating double taxation, may have a limited impact on reducing the taxable income of multinational enterprises to some extent. The evaluation of Amount B suggests the adoption of a simplified and intuitive transfer pricing rule for baseline marketing and distribution activities. However, the potential conflict between alternatives A and B regarding the scope of application requires close monitoring for resolution. Additionally, the limitations of indicators used in the pricing matrix for Amount B warrant examination.