國際稅法上營業所得來源地問題之探討

On the Source of Business Income in International Tax Law

我國與其他國家締結之租稅協定，具有國內法效力，且屬於特別法性質，倘若租稅協定對於營業所得之來源地標準，有特別規定時，應優先適用之（所得稅法第124條）。關於營業所得之來源地標準，租稅協定範本僅規定在境內營業，至於境內營業之判斷標準，日本立法例以往採取「實質經濟活動地點」是否在國內作為判斷基準，包括應考量貨物所在地、締約地，以及重要締約過程地點等因素。美國立法例為統一簡便管理，使徵納雙方便於遵循，原則上採取「法律上所有權移轉地點」，作為判斷基準。德國及日本立法例，參照OECD租稅協定範本第7條規定：「無常設機構，則無課稅」之課稅法則，對於營業所得之境內來源所得判斷標準，原則上採取「常設機構」標準，以歸屬於境內常設機構之營業所得，才作為境內來源所得之課稅範圍。在跨越境內及境外之營業活動，取得之混合來源所得，應按照比例分配其境內外之來源所得。如果無法明確劃分生產與銷售之價值貢獻時，則導入推計課稅之法理。亦即依據納稅義務人提供之資料為基礎，按照獨立企業原則進行推計課稅。

The taxation convention concluded between R.O.C.and other countries has the effect of domestic law and is of a special law nature. If the tax convention has special provisions on the source of business income, it should be applied priority (Article 124 of the Income Tax Law).Regarding the source of the source of business income, the OECD Model Tax Convention only provides for business in the domestic market. As for the judgment criteria for domestic business,In the past, the Japanese legislation adopted the“location of real economic activities”as a benchmark for domestic judgment, including consideration of the location of the goods, the contracting place, and the location of the important contracting process. The United States legislation is a simple and unified model management, which makes it easy for both parties to follow. In principle, the“legal transfer of ownership”is adopted as the benchmark for judgment.Regarding the source of business income standards, the OECD Model Tax Convention only stipulates that it engaged in domestic business activities is open for business in China. As for the judgment criteria for domestic business, whether the“legislative economic activity location”in the past is used as a basis for judgment in the domestic legislation, including the location of the goods to be considered, And other factors such as the location of the important contracting process. The United States legislation is a simple and simple management, which makes iteasy for both parties to follow. In principle, the“legal transfer of ownership”is adopted as the benchmark for judgment.For the German and Japanese legislation, refer to Article 7 of the OECD Model Tax Convention:“There is no permanent establishment”“There is no taxation”, and the criteria for determining the domestic source of business income are, in principle, the“permanent establishment”standard. The business income attributable to a permanent establishment in the territory shall be deemed as the scope of taxation of the domestic source.In the case of cross-border and overseas business activities, the income from the mixed sources obtained shall be distributed according to the proportion of the sources of domesti and foreign sources. If the value contribution of production and sales cannot be clearly defined, the estimate taxation is introduced. That is to say, based on the information provided by the taxpayer, the taxation is carried out in accordance with the principle of independent enterprises.