이전가격 사전합의(APA)에 관한 조세법제 연구

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(1)Study on new way of Avoiding and Resolving Transfer Pricing Disputes: Advance Pricing Agreements(APA) Jong-Su Park. 이전가격 사전합의(APA)에 관한 조세법제 연구. 2003. 11.. 硏究者 : 朴鍾秀 (副硏究委員).

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(3) 국 문 요 약 ‘이전가격. 사전합의(Advance. Pricing. Agreement,. APA)제도’는. 이미 미국을 위시한 각국에서 도입 실시하고 있으며 OECD차원에서도 그 통일적 규율을 위한 지침이 마련될 정도로 오늘날 이전가격의 조작을 통한 다국적기업의 조세회피행위에 대한 매우 효과적인 대응책으로서 학 문적으로는 물론 실무적으로도 심도 있게 논의되고 있는 문제영역이다. 다국적기업은 그 특성상 국경을 달리하는 특수관계에 있는 다른 기업과 의 거래시 당해 기업그룹 전체로서의 조세부담을 최소화하기 위해 가격 을 조작함으로써 특수관계기업간에 소득을 이전시키는 정책에 매료되기 마련이다. 그러나 이러한 다국적기업의 이전가격정책은 고세율국가의 조 세수입을 감소시키기 때문에 주로 선진국인 다국적기업의 소재지국에서 는 다국적기업의 신고소득이 부당하게 낮은 경우 이를 특수관계가 없는 독립기업간의 거래가격(정상가격)에 의하여 과세소득을 조정한다. 이러 한 이전가격세제는 그러나 매우 기술적인 부분이 많아서 과세당국이 당 해 가격이 적정가격이 아니라는 사실을 입증하기도 어렵고, 자료수집을 위해서는 외국정부의 협조에 의존해야 하는 경우가 많다. 또 납세의무자 로서도 과세당국으로부터 일일이 세무조사를 받아야 하는 부담이 있다. 이에 미국을 위시한 선진국들에서는 납세의무자의 신청에 의해 대략 3∼ 5년간의 국제거래 정상가격 산정방식을 과세당국간 상호협상을 통해 사 전에 확정하고, 대신 같은 기간 과세당국이 모․자회사에 대해 이전가격 조사를 면제하는 이전가격 사전합의제도를 시행하고 있다. 우리나라도 1995년 12월 국제조세조정에관한법률이 제정되면서 종래의 이전가격세제 를 선진국 수준으로 진일보시킴은 물론 특히 정상가격 산출방법의 사전 승인제를 도입함으로써 다국적기업의 조세회피행위에 대하여 선진국수준 의 대응이 가능하게 되었다. 그러나 아직 이 제도에 대해서는 그 효용성 에도 불구하고 활성화되지 못하고 있는 실정이다. 이에 정부에서도 국세 청을 중심으로 이 제도에 대한 관심을 높이고 이 제도의 적극활용을 유 도하기 위해 공청회와 각종 홍보활동을 계속하는 등 노력하고 있으나 아.

(4) 직 미흡하다고 볼 수 있다. 이전가격 사전합의는 분명 납세의무자나 과세 당국 양측에게 도움이 되는 제도임에 틀림없다. 그러나 제도운영상 제기 되는 문제점들은 그때그때 개별적으로 해결하여 반영함으로써 우리 실정 에 맞는 제도로서 정착시킬 수 있을 것이다. 이전가격 사전합의제에 있어 서도 논의의 본질적인 귀착점은 조세법률주의와 조세평등주의에 있음을 간과하여서는 아니된다..

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(7) 목 차. 제 1 장 연구의 개요 ··················································································· 13 제 1 절 연구의 목적 ···················································································· 13 제 2 절 연구의 내용과 범위 ····································································· 14. 제 2 장 이전가격 사전합의의 의의와 현행법제의 분석 ······ 17 제 1 절 이전가격 사전합의의 의의 ························································ 17 Ⅰ. 이전가격사전합의의 개념 ·································································· 17 Ⅱ. 일방적 APA ························································································ 19 Ⅲ. 쌍방적 APA ························································································ 21 Ⅳ. APA 논의의 의미 ·············································································· 24 Ⅴ. APA 개념사용의 불통일성 ······························································ 25. 제 2 절 이전가격사전합의에 관한 현행법제 분석 ··························· 26 Ⅰ. 국제조세조정에관한법률의 제정과 개정 ········································ 27 1. 국제조세조정에관한법률의 제정 ··················································· 27 2. 국제조세조정에관한법률의 개정연혁 ··········································· 28 Ⅱ. 우리나라의 이전가격세제 ·································································· 31 1. 국제조세조정에관한법률 제정 이전의 이전가격세제 ··············· 31 2. 국제조세조정에관한법률에 의한 이전가격세제 ························· 32 Ⅲ. 정상가격 사전승인제도 ······································································ 45 1. 사전승인신청 ····················································································· 46 2. 심 사 ··································································································· 46 3. 상호합의절차에 의한 사전승인 ····················································· 47 4. 일방적 사전승인절차 ······································································· 48 5. 연례보고서의 제출 ··········································································· 49.

(8) 6. 사전승인의 취소 ··············································································· 49. 제 3 절 현행법제상의 문제점 ··································································· 50 Ⅰ. 승인의 법적 성격과 용어상의 문제 ················································ 50 Ⅱ. 법 제6조제4항 단서의 문제 ····························································· 51 Ⅲ. 위임입법의 한계문제 ·········································································· 53 Ⅳ. 시행령 제14조의 문제 ······································································· 55 Ⅴ. 승인후의 사후관리 문제 ···································································· 56 Ⅵ. 비공개의 문제 ······················································································ 56. 제 3 장 주요국 및 OECD의 이전가격사전합의제도와 그 시사점 ························································································ 57 제 1 절 개 관 ································································································· 57 제 2 절 일 본 ································································································· 58 Ⅰ. 개 설 ······································································································ 58 Ⅱ. 일본의 이전가격세제 ·········································································· 60 1. 개 관 ··································································································· 60 2. 도입취지 ····························································································· 61 3. 적용대상 법인 ··················································································· 62 4. 적용대상 거래 ··················································································· 62 5. 국외관련자 ························································································· 63 6. 독립기업간 가격 ··············································································· 66 7. 자료정보의 제공의무 ······································································· 78 8. 추계과세 ····························································································· 80 Ⅲ. 대응조정 ································································································ 81 1. 개 관 ··································································································· 81 2. 차액조정 ····························································································· 82 3. 제2차 조정 ························································································· 83 Ⅳ. 사전확인제도 ························································································ 84.

(9) 1. 사전확인 대상 ··················································································· 85 2. 확인의 신청 ······················································································· 85 3. 자료의 첨부 ······················································································· 85 4. 번역자료의 첨부 ··············································································· 87 5. 확인 신청서의 수리 ········································································· 87 6. 이전가격 조사와의 관계 ································································· 87 7. 사전상담 ····························································································· 87 8. 확인대상 사업연도 ··········································································· 88 9. 확인신청의 심사 ··············································································· 88 10. 확인에 관한 상호협의 ··································································· 88 11. 심사결과 통지 ················································································· 88 12. 보고서의 제출 ················································································· 89 13. 확인의 효과 ····················································································· 90 14. 가격의 조정 ····················································································· 90 15. 확인의 개정 ····················································································· 91 16. 확인의 취소 ····················································································· 91 17. 확인의 갱신 ····················································································· 91 18. 기수행 사업연도에 소급적용 ······················································· 92 Ⅴ. 남은 과제 ······························································································ 92. 제 3 절 미 국 ································································································· 96 Ⅰ. 개 관 ······································································································ 96 Ⅱ. 세입절차 91-22의 내용 ···································································· 97 1. 목 적(Sec. 1) ·················································································· 97 2. 개 관(Sec. 2) ·················································································· 98 3. APA 처리의 원칙(Sec. 3) ·························································· 98 4. 사전상담(Sec. 4) ············································································ 99 5. APA 신청의 내용(Sec. 5) ·························································· 99 6. APA 의뢰서의 처리(Sec. 6) ···················································· 107 7. 관할 당국 심의(Sec. 7) ····························································· 108.

(10) 8. 독립적 전문가 의견(Sec. 8) ····················································· 110 9. 법적 효력(Sec. 9) ······································································· 111 10. APA 관리(Sec. 10) ································································· 111 11. 공 개(Sec. 11) ·········································································· 118 12. 기타 문서에 대한 효과(Sec. 12) ·········································· 118 13. 효력발생(Sec. 13) ···································································· 119 Ⅲ. 수정 세입절차 96-53의 내용 ······················································· 119 1. 주요 개정사항 ················································································· 119 2. 목 적(Sec. 1) ··············································································· 120 3. 개 관(Sec. 2) ··············································································· 120 4. APA 절차의 원칙(Sec. 3) ························································ 121 5. 사전상담(Sec. 4) ········································································· 123 6. APA 신청서의 내용(Sec. 5) ···················································· 124 7. APA 신청서의 처리(Sec. 6) ···················································· 135 8. 관할 당국 심의(Sec. 7) ····························································· 138 9. 소급적용(Sec. 8) ········································································· 140 10. 독립적 전문가 의견(Sec. 9) ··················································· 141 11. 법적 효력(Sec. 10) ·································································· 142 12. APA 관리(Sec. 11) ································································· 143 13. 공 개(Sec. 12) ·········································································· 151 14. 다른 문서에 대한 효과(Sec. 13) ·········································· 151 15. 유효일자(Sec. 14) ···································································· 151 16. 문서 작업 축소령(Sec. 15) ···················································· 151. 제 4 절 독 일 ······························································································· 152 Ⅰ. 개 관 ··································································································· 152 Ⅱ. 독일의 법상태 ··················································································· 153 1. 특별규정에 의한 경우 ··································································· 153 2. 연방재무부 서신 ············································································· 155 3. 양국간 구속적 사전정보제공에 관한 州지침 ··························· 159.