조세회피거래 사전신고제도 도입에 관한 연구

초록

In 2015, the OECD recommended the introduction of mandatory disclosure rule (hereinafter, “prior filing rule”) in the domestic tax laws for its member countries through publishing the BEPS Report Action 12, which obligates the taxpayer or tax intermediary to report a tax avoidance scheme to the tax authorities before its actual execution. Eight countries have already institutionalized this rule in their domestic tax laws. In this paper, the authors reviewed the recommendations given by the OECD and studied on whether Korea will be better off with this new rule if it is introduced in Korean tax laws and, if the answer is yes, on what features the new rule has to have. For this purpose, the institutional examples of the above 8 countries have also been researched. The reason why the OECD has recommended this system for its member countries is that it felt that the vastly spread current BEPS phenomena have been aggravated by the lack of effective measures wielded by the tax authorities because they cannot obtain timely information on the aggressive tax planning strategies made on the side of taxpayers. The OECD has found that the prior filing rule will do its role as an effective administrative tool decently in curtailing the spread of BEPS phenomena. The environment of tax administration in Korea of which economic globalization is astonishingly speedy has the same problems that the OECD report has found at the global level. That surely makes the introduction of the prior filing rule in Korean tax laws indispensible. The prior filing rule is built on the word “tax avoidance” as its core concept. From the logical point of view, a provision to define the word “tax avoidance” has to be provided along with its introduction to a tax law. The debate on the introduction of such provision has long been maintained in the academic arena of Korea to no avail. Such provision seems to have been understood as being very abstract and therefore increasing legal uncertainties by the majority of scholars and even policy makers. Considering such history of negative sentiment against the provision, we may not dash to introduce it, even though the OECD has recommended the introduction of prior filing rule. Then, under the current tax laws devoid of such provision for the general anti-avoidance rule, a more realistic approach may be considered, which is a prior filing rule limiting the reportable schemes to specific types of transactions. In the longer term, we may develop a provision to define the concept of “tax avoidance” and expand the scope of reportable avoidance scheme.

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