사용료소득의 원천별 안분기준 - cross-license하에서 미등록특허 사용료의 국내원천소득 구분을 중심으로 -

The court, immersed in the interpretation of the meaning of ‘use’ in the tax law suggested by the preceding judgment, focuses only on the issue of determining the source of royalties for patents not registered in Korea (hereinafter referred to as ‘unregistered patents’), and it underestimates the issues related to the distribution of royalties income and the location of the burden of proof, which are essential in determining how much the consideration for the use of patents registered in Korea is among all the considerations for the use of all patents received. This article does not discuss whether it is desirable to interpret the meaning of ‘use’ in the tax law based on the principle of territorial sovereignty in the previous judgment of the court. The purpose of this is to reveal a reasonable method of dividing royalties into unregistered patents and domestically registered patents and the location of the burden of proof. To this end, it is assumed that the U.S. corporation receives consideration for the use of its patents under a cross-licensing agreement with a domestic corporation, in which case we review U.S. laws and practices. The court underestimated the distribution of royalties income for unregistered patents and the burden of proof, so in the case of specifying the royalties for each patent regardless of the place of registration in the patent license agreement, it followed them. If the foreign corporation, the plaintiff, claimed that the amount obtained by dividing the royalty income paid according to arbitrary standards as domestic source royalty income, it was accepted without any special hearing. At the same time, the court has placed the burden of proving the specific circumstances related to the calculation of legitimate domestic-source royalty income, such as that the domestic-source royalty income claimed by the plaintiff is too low on the tax authority. In the case of the US court, unlike the Korean courts, the division of royalties by source and the burden of proof are borne by the taxpayer, and if the taxpayer fails to fulfill the burden of proof, the entire royalties income is regarded as US-sourced royalty income and taxed. While the Korean courts do not have to follow the attitudes of the US courts, the tax authorities have demonstrated that the taxpayer has received domestic source income, the ease of proving the true value of each patent, and the access to evidence, and that it is the taxpayer who benefits from such proof. Considering these factors, it is of course reasonable and inevitable that in Korea as in the United States, it is reasonable and inevitable for taxpayers to bear the burden of proof and division of royalties income by source. The court must go beyond judging the source of royalty income and determine how much domestic royalty income is legitimate. To this end, the court needs to establish a new clear standard through in-depth consideration regarding the distribution of royalties income and the location of the burden of proof. Attention is paid to the judgment of the Supreme Court, which has the final interpretation and decision-making authority.