한미조세협약상 특허권 사용료의 해석과조약 개정에 관한 논의

The Supreme Court is stipulating its position that the use of patents that are not registered in Korea cannot be taxed under the Korea-US tax treaty, and after that, the Corporate Income Tax Law was amended by adding the provision of “use” in the tax treaty where the place of use principle is applied. Since then, despite the amendment of the Corporate Income Tax Law, the Supreme Court keeps its position that consideration for the use of patents that are not registered in Korea cannot be taxed, which is an established position of the judiciary. In this paper, while the Supreme Court’s judgment has received a lot of criticism, it is argued that the Supreme Court’s judgment is appropriate based on the legal logic related to interpretation of tax treaties according to international law under the Vienna Convention and the territoriality principle under the Patent Law. In addition, this paper compares the judgment of the Supreme Court of Japan of which tax treaty and domestic tax law are similar to those of Korea, as well as comparing the following countermeasures of the Korean government and the Japanese government. In conclusion, while the Japanese tax treaty and Japanese domestic tax law are very similar to the Korean tax treaty and Korean domestic tax law, after the Japanese Supreme Court’s judgment, Japan has amended the tax treaty. As the amendment of the Japan-US tax treaty cannot be fully compatible with the Korean situation, amendment of the tax treaty cannot be proposed in the same direction as Japan’s. However, it should be noted that Japan, with their professionals, has reviewed the amendment of tax treaty for years. Rather than trying to secure taxable rights in the relationship with other countries through amendments of domestic tax law, there should be efforts in reviewing amendment of tax treaty in accordance with our reality. As the change of policy direction will be beneficial to the national interest as well as not wasting taxpayers’ money, it is hoped that broad direction in this discussion leads to changing the analytical point of view to the policy point of view.