Guidance o n M utual Agreem e m e nt Pro cedure s fo r Taxpaye rs

Transcription

1 Guidance o n M utual Agreem e m e nt Pro cedure s fo r Taxpaye rs August National Tax Service

2 Table of Contents Ⅰ. Overview of a Mutual Agreement Procedure (MAP) 1 Ⅱ. Application of MAP 2 Ⅲ. Proceedings and Closing of MAP 9 Ⅳ. Implementation of MAP Outcome 15 Ⅴ. Documentation 17

3 Preface

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5 1) Refer to 2.4 Competent Authority of MAP - 2 -

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20 Enforcement Rules of the Adjustment of International Taxes Ace[Tax Form 4] <Revised on Mar. 17, 2017> Receipt No. Please do not fill out gray area, and mark in [ ] (front page) Date of Receipt 1. Applicant 1 Name of Company 3 Name of Company Representative 5 Type of Business 2 Resident Country 4 Business Registration No. 6 Telephone No. 7 Business Address 8 More than two applicants [ ]Yes [ ]No 2. Related Entity 10 Name of Company 12 Name of Company Representative 14 Type of Business 9 Relationship among applicants [ ]Parent-Subsidiary (Share Ratio: %) [ ]Head-Branch Office [ ]Other (Explanation: ) 11 Resident Country 13 Business Registration No. 15 Telephone No. 16 Business Address 17 Relationship with [ ]Parent-Subsidiary (Share Ratio: %) [ ]Head-Branch Office applicant [ ]Other (Relationship: ) 3. Information on the Request for Mutual Agreement Procedure [ ] Article 22(1)(1) Adjustment of International Taxes Act 18 Legal Grounds [ ] Article 22(1)(2) Adjustment of International Taxes Act [ ] Article 22(1)(3) Adjustment of International Taxes Act 19 The date of acknowledgement of (expected) taxation 20 Relevant Tax Treaty 21 Details of (expected) taxation No. 1 Relevant Fiscal Year Amount of Income Adjustment Amount of Taxes Assessed Paid Tax [ ]Paid [ ]Unpaid Date of Payment Reason 2 22 Taxpayer opinion and its ground on the (expected) tax assessment Total 23 MAP request to the other Contracting State [ ]Filed/Will File [ ]No 24 Contracting State 25 Contact Info. Telephone ( ) ( ) 26 (expected) Filing Date

21 27 Request to the other dispute resolution process 31 Advance dispute resolution process [ ]Filed/Will File [ ]No 28 Name of Recipient 29 Contact Info Telephone ( ) ( ) 30 (expected) Filing Date Advance Ruling Program Advance Pricing Agreement Other ( ) (rear page) Yes[ ] on-going[ ] No[ ] Yes[ ] on-going[ ] No[ ] Yes[ ] on-going[ ] No[ ] I hereby submit this Application Form in accordance with the Article 9(1)(6) and the Article 39(2)(1) of the Enforcement Decree of the Adjustment of International Taxes Act. I hereby certify that all the above information are true and correct to the best of my knowledge and belief. I acknowledge that the competent authority may request modification or supplementation where any information is missing or I failed to submit any necessary materials. I also acknowledge that the mutual agreement procedure may not be commenced or be delayed where the contents of this Application and the documents submitted are not supported by the facts and circumstances. Finally, I hereby certify that I shall assist with best endeavors the competent authority in its resolution of the issue(s) presented in this Application. Date Month Year Applicant (Signature or Stamp) To Minister of Strategy and Finance (or Commissioner of National Tax Service) Required Documentation for submission 1. Financial statements and tax returns relevant to this application for commencing MAP 2. An appeal, if the applicant or his/her foreign related party files an objection 3. Any document that the competent authority may be able to identify the details of tax assessment including an advance notice of taxation, a notice of tax payment, and a notice of refusal disposition with a request of correction (where the applicant refused a request for correction) 4. Any document providing information on specific tax treaty including the provisions which the taxpayer considers incorrectly applied by either one or both Contracting States 5. Any document providing information on the summary of tax assessment being imposed on the applicant, whether the statute of limitation of the covered transaction is expired in the Contracting State, the facts and circumstances of the transaction, the basis for making a claim that the provision of the specific tax treaty is not correctly applied by either one or both Contracting States, and the analysis of the applicant or his/her foreign related party No concerning the tax assessment Application 6. Any document certifying tax payment where the applicant already paid the tax amount which Fee is covered by the application for MAP 7. A copy of submission including all documentations filed with that submission where the applicant submitted or will submit a MAP application to the competent authority of Contracting State 8. A copy of submission or written decision including other relevant documentations filed where the applicant submitted or will submit an appeal to another authority under another mechanism to resolve treaty-related disputes other than the mutual agreement procedure that is provided to taxpayers in/out of Korea (refers to the document that does not fall under the appeal described in 2.7(3) of this Guidance) 9. A copy of submission, written decision, or other relevant documentations filed where the case was previously dealt or is currently being dealt by any other advanced dispute resolution process in/out of Korea How to Complete this Application 1. If the numbers of applicants are more than two, each applicant shall prepare the application separately. 2. 4, 13 : If the applicant is a foreign entity and does not have a business registration number, write the taxpayer identification number of his/her resident country Sections for Related Entity : Write the information on the counterpart entity relating to the tax assessment at issue : Write the date the applicant became aware of the (expected) tax assessment not in accordance with the tax treaty through an advance notice of taxation, etc : Write the tax treaty and its individual provision(s) that the applicant considers that the tax authority incorrectly applies : Write income and tax assessed subject to the MAP request respectively by relevant fiscal year. If the tax base/tax amount increases from Korean side, write as a positive number(+). Whereas if the said mount decreases from Korean side, write as a negative number(-). If the applicant already paid the relevant taxes, write the date of payment and submit the certification of tax payment. If the applicant did not pay the taxes because of the deferment of collection, etc. mark unpaid and write the reason : The applicant may write this section in a separate document : If the applicant filed (or will file) a MAP application to the competent authority of the other Contracting State, mark Filed/Will File and fill out from 24 to 26, with the submission of the application copy , 29 : Leave the section empty if address is not exist If the applicant requested (or will request) for any dispute resolution process in/out Korea apart from MAP, mark File/Will File and write from 28 to 30 with the submission of the copies of application, written decision and other relevant materials : If the applicant marks Yes or on-going, submit the copies of application, written decision, and other relevant materials.

22 Enforcement Rules of the Adjustment of International Taxes Act[Tax Form 15] <Revised on Feb. 28, 2012> Receipt No. (front page) Date of Receipt 1 Name of Company 2 Business Registration No. Applicant 3 Name of Company Representative 4 Type of Business 5 Telephone No. 6 Business Address 7 Type of Deferment Deferment of [ ] Tax Payment Notice [ ] Tax Collection [ ] Disposition of Arrears [ ] Installment Payment, etc. Payable Tax Amount(Tax Arrears) Requested Amount for Deferment of Tax Collection(Disposition of Arrears) 8 Tax Items 9 Fiscal Year /Quarter 10 Payable Due Date 11 Principle Tax 12 Additional Due 13 Total 14 Principle Tax 15 Additional Due Installment Payment and Payable Due Date Number of Installment Tax Item Fiscal Year /Quarter Payable Due Date Tax Amount Additional Amount equivalent to Interest Applicant of the other Contracting State MAP Info. Contracting State Name of Company Relationship with Applicant for Special Provisions [ ] Parent-Subsidiary(Share Ratio %) [ ] HeadㆍBranch Office [ ] Other (Explanation: ) Competent Authority of Contracting State Position Name Applying Period for Special Provisions From the commencement date of MAP( Date Month Year)to the closing date of MAP I hereby submit this Application Form in accordance with the Article 24(6) of the Adjustment of International Taxes Act and the Article 40(3)(1) of the Enforcement Decree of the Adjustment of International Taxes Act Date Month Year Applicant (Signature or Stamp) To Head of NTS District Office (or Head of Local Government) Attachment A copy of Notice of Closing Mutual Agreement Procedure issued by the Commissioner of the National Tax Service No Application Fee

23 Enforcement Rules of the Adjustment of International Taxes Ace[Tax Form 7] <Revised on Feb. 28, 2012> This application is available on Hometax ( as well Receipt No. Date of Receipt Proceeding Period 2 Months 1 Name of Company 2 Business Registration No. Applicant 3 Name of Company Representative 4 Type of Business 5 Telephone No. 6 Business Address 7 Name of Company 8 Resident Country Foreign Related Company 9 Name of Company Representative 10 Business Type 11Business Address [ ]Parent-Subsidiary(Share Ratio: %) [ ] HeadㆍBranch Office 12 Relationship with Applicant [ ]Other(Explanation: ) 13 Closing Date of MAP Business Year Adjusted Items 14 Date of Receipt on MAP Outcome Total 15 Details of Income Adjustment Total I hereby submit this Application Form in accordance with the Article 17(1) and (2) of the Enforcement Decree of the Adjustment of International Taxes Act Date Month Year Applicant (Signature or Stamp) To Head of NTS District Office Attachment 1. A copy of Notice of Closing Mutual Agreement Procedure issued by the Commissioner of the National Tax Service (Submit where the Article 17(1) of the Enforcement Decree of the Adjustment of International Taxed Act applies) 2. A copy of Notice (A written approval of Advance Pricing Agreement)issued by the Commissioner of the National Tax Service (Submit where the Article 17(2) of the Enforcement Decree of the Adjustment of International Taxed Act applies) No Application Fee

24 Enforcement Rules of the Adjustment of International Taxes Ace[Tax Form 16(1)] <Revised on Feb. 28, 2012> Contracting State 1 Name of Company 2 Business Registration No. Applicant 3 Name of Company Representative 4 Type of Business 5 Business Address 6 Name of Company 7 Name of Company Representative Foreign Related Company 8 Type of Business 9 Business Address 10 Relationship with Applicant [ ] Parent-Subsidiary(Share Ratio: %) [ ] Head ㆍ Branch Office [ ] Other(Explanation: ) 11 Commencement Date of MAP 12 Closing Date of MAP 13 Details of MAP Application 14 Details of MAP Outcome The National Tax Service notifies as above in accordance with the Article 27(2) of the Adjustment of International Taxes Act and the Article 42(2) of the Enforcement Decree of the Adjustment of International Taxes Act Date Month Year Minister of Strategy and Finance (or Commissioner of National Tax Service) Stamp To

25 Enforcement Rules of the Adjustment of International Taxes Ace[Tax Form 16(2)] Contracting State 1 Name of Company 2 Business Registration No. Applicant 3 Name of Company Representative 4 Type of Business 5 Business Address 6 Name of Company 7 Name of Company Representative Foreign Related Company 8 Type of Business 9 Business Address 10 Relationship with Applicant [ ] Parent-Subsidiary(Share Ratio: %) [ ] Head ㆍ Branch Office [ ] Other(Explanation: ) 11 Commencement Date of MAP 12 Closing Date of MAP 13 Details of MAP Application 14 Details of MAP Outcome The National Tax Service notifies as above in accordance with the Article 27(2) of the Adjustment of International Taxes Act and the Article 42(2) of the Enforcement Decree of the Adjustment of International Taxes Act Date Month Year Minister of Strategy and Finance (or Commissioner of National Tax Service) Stamp To