국내 미등록 특허와 국내원천소득인 사용료 - 관련 대법원 판결을 중심으로 -

Where royalty income is taxed by the source country and the concept of ‘use’ has not been defined under the relevant tax treaty which has adopted the place of use principle as the criterion for determining the source country, the courts in each jurisdiction interpret ‘use’ differently, as domestic tax laws of each country are different. From a broader standpoint, ‘use’ is differently interpreted based on the territorial principle pursuant to patent law and based on the relevant provisions of the tax treaty and the laws of the relevant contracting state, respectively. The Korea-US Tax Treaty does not include a provision on the concept of ‘use’. With respect to the question of whether consideration for patents that are unregistered in Korea may be regarded as Korean source royalty income, the Supreme Court of Korea, in two cases which were decided before the proviso under Article 93(9) of the old Corporate Income Tax Act (“CITA”) that was amended to Law No. 9267 dated December 26, 2008 was newly added (hereinafter “the relevant CITA provision”), interpreted ‘use’ under the Korea-U.S. Tax Treaty to mean the ‘implementation of patents registered in Korea’. Despite the interest in whether the position of the Supreme Court would change as a result of the new provision, the Supreme Court maintained its previous position in its decision dated November 28, 2014 (2012Nu18356). This Article reviews foreign cases, principles for interpretation of tax treaties, relevant Supreme Court decisions and laws relating to the Korea-U.S. Tax Treaty, and research papers on patents not registered in Korea issued from the 1990s to date in order to determine the issues surrounding the Supreme Court’s above decision. In other jurisdictions, if the concept of ‘use’ is not defined under the applicable tax treaty, interpretation of the term generally follows the territorial principle under patent laws. In jurisdictions such as Japan and Germany, where there are relevant provisions under domestic laws, it has been shown that interpretation is made not based on the territorial principle under patent laws but in accordance with the meaning defined under domestic laws. On the other hand, the Korea-U.S. Tax Treaty and the OECD Model Tax Convention stipulate that where a tax treaty term is not clearly defined or the meaning of the term is unclear under the context, the term should be interpreted based on the laws of the contracting state. Such principles are accepted as general rules of treaty interpretation. In summary, there no longer exists a basis for adopting the territorial principle under patent laws in determining whether income is Korean source royalty income under the Korea-U.S. Tax Treaty after the relevant CITA provision is newly added, as the relevant CITA provision defines the meaning of ‘use’. In conclusion, consideration for the use of patents that are not registered in Korea should also be interpreted as domestic source royalty income, as long as the patents are used and consideration is paid in Korea. I hope that this Paper may be helpful in interpreting the scope of domestic source royalty income taxation and the meaning of ‘use’ for purposes of the Korea-U.S. Tax Treaty.