한미조세조약상 ‘거주자’ 관련 법적 쟁점 ― 서울고등법원 2014.6.27. 선고 2012노594 판결을 중심으로 ―

There are some special legal issues on interpreting the Income Tax Treaty between the Republic of Korea and the United States (“Treaty”), when a taxpayer is a resident by the law of both contracting states. First, the issue concerns the paramount question that what would be the proper test for ascertaining which contracting state is a taxpayer’s residence and thereby such taxpayer is considered as resident of such contracting state (especially, how to interpret “permanent home” in the Treaty)? Second, by which of contracting states may a taxpayer be taxed regarding income from sources of a country other than contracting states. Third, if a taxpayer is Korean citizen, is it possible for Korean National Tax Service (“NTS”) to tax him by virtue of the Saving Clause of the Treaty regardless of certain provisions which limit certain taxation in the Treaty? As for the first issue, it should be noted that the term “permanent home” includes an additional element of “a place where he dwells with his family” in the Treaty which is clearly not in conformity with the model tax treaty rules of OECD (the “OECD Model”) that have been adopted by many other jurisdictions and states worldwide. In light of the above, it is necessary to consider a certain theory of interpretation for Article 4(2) of the Treaty. Considering the provision of Article 4(2) of the Treaty, “permanent home” should be interpreted to include the express definition provided thereof together with the traditional interpretation of a “permanent home” under the OECD Model. That is, the length of stay with a taxpayer’s family member should also be taken into consideration as one of important factors in determining whether a specific contracting state can be deemed as a place of his permanent home. Where a place of permanent home cannot be clearly or easily determined, we should look to the next test that is stipulated in the Treaty rather than comparing the factors which each contracting state considers in determining a permanent home. As for the second issue, notwithstanding Article 4(1) of the Treaty, as the Treaty is moot on the issue of “Other Income” as provided in the OCED Model, it is rather ambiguous whether the Treaty should be deemed as to cover the income from sources of a country other than contracting states. Considering the above, it may be interpreted that the Treaty is not applicable to such “Other Income” and in such event, NTS can tax on such “Other Income” upon determination that such taxpayer is a resident under the applicable tax laws of Korea. As for the third issue, “Saving Clause” in the Treaty should be applied reciprocally between the contracting states even though the clause was introduced by the will of only one contracting state, the United States. The technical explanation of the Treaty provides the same opinion and guidelines for the interpretation. Therefore, considering all of the above reasons and analysis, it can be said that if taxpayer is a Korean citizen, NTS should be able to tax him according to the tax laws of Korea regardless of the Treaty by virtue of the Saving Clause.