이른바 혼합계약에서의 소득원천 판정에 대한 소고-전자상거래시대의 사업소득과 사용료소득 구분을 중심으로-

This article examines the issue of determining the source of income as a premise for the allocation of international tax jurisdiction, based on the income characterization in mixed contracts. In particular, this article deals with the issue of how to classify specific taxable income within the current international tax normative framework in today's e-commerce era with specific examples. The main thesis of this article can be summarized as follows. First, income characterization is necessary for determining the source of income, and for this purpose, determining the legal evaluation unit of income becomes a prerequisite. When determining a legal evaluation unit, we should follow the relevant prestigious regulations. Where there is no such law, we should start by recognizing the income unit as the contract text, but also review whether the legal evaluation unit can be found through specific contracts, and make a final judgment. Second, determining the evaluation unit of income from a transactional and practical point of view refers to review steps by determining the legal evaluation unit and its relevant factors and inferring transactional substance the parties were actually pursuing considering today's e-commerce era. Third, the intention of the parties is primarily important in the income characterization of mixed contracts. In principle, if the intention of the parties cannot be followed as it is, it is classified as the main income by considering whether there is a main constituent in the income items constituting the mixed contract. There may be no precedents of Supreme Court of Korea yet for the income characterization where there is a main constituent in the income items constituting the mixed contract under the tax law. Fourth, income characterization regarding mixed contracts is ultimately linked to revealing the substance of the contract, and such determination should sufficiently reflect not only the intention of the parties but also the changed transaction environment such as attributes of e-commerce. When it comes to classifying income, if it is difficult to determine what kind of income it is, such determination is eventually the issue of which income characterizaion alternatives is more persuasive from the perspective of rational parties.