법인세법 상 사용료 소득구분과 한미조세협약 상 사용료 조항의 적용

Irrespective of the royalty clauses in the existing Korea-Us Tax Treaty (hereinafter ‘KUTT’), Korean Corporate Income Tax Law(hereinafter ‘KCIT’), by way of the 2020 amendments, has confirmed that domestic-sourced royalties should be determined by reference to ‘use de facto’ concept of relevant intellectual properties(hereinafter ‘IPs’) and changed the qualification of damages for the unlawful use of IPs from royalty into the other income. This paper explores how the relevant 2020 amendment of KCIT should play role in the application of royalty clauses of KUTT. This issue breaks down into the following sub-issues；application priority between tax treaty and domestic tax law, interpretations in general of tax treaty, possible solutions to qualification conflicts between tax treaty and domestic tax law, concrete impacts of the relevant 2020 amendment of KCIT on the application of royalty clauses in the existing KUTT. The conclusions on the above issues are as follows. First, tax treaties do not create substantive taxing rights but rather modify domestic legal tax obligations by establishing agreements on the allocation of taxing rights to reduce double taxation. Thus the qualification of income items on tax treaty has priority over those of domestic tax law in respect of ‘taxing rights distribution’ between contracting States. And the qualification of domestic tax law has priority only over the domestic enforcements of the distributed taxing rights in line with the relevant tax treaty. Secondly, the deviation from the interpretation by reference to domestic law should be permitted to the extent that the ‘context' reveals weighty arguments in favour of such a deviation. The term ‘context' in tax treaties is broader than that in Article 31(2) VCLT(The Vienna Convention on the Law of Treaties). Thus, in addition to the text of the treaty and any supplementary instruments, the term ‘context' of tax treaty should also cover the object and purpose thereof, the relevant provisions of domestic legal systems and also the OECD and UN Model Commentaries. When the context thereof requires, autonomous interpretation must be attempted. In this case, a direct resort to domestic law may not be permitted. If a Contracting State changed its domestic tax law only for altering the scope of a distributive rule and increasing its tax revenue, it should be considered as being contrary to the context per se of relevant tax treaty. Thirdly, tax treaties provide for an ambulatory interpretation of the domestic law. But if a contracting State unilaterally enacts new domestic tax laws contrary to an existing treaty without the treaty amended or terminated, such legislative action is a violation of the treaty under public international law. This is referred to as treaty override. The invalidity of the treaty-violating domestic law depends on the particular State's constitutional law. However, the validity of the treaty-violating domestic law is irrelevant to the violation of international law. The domestically-valid legislation may infringe the obligations of public international law. The treaty-violating domestic law inevitably leads to an infringement of international principles, which consist of ‘the pacta sunt servanda’, ‘the good faith principle’, ‘the equality of nations’, etc. These legal doctrines shall be applied to ‘interpretative treaty override’ in the same manner as ‘legislative treaty override’. The concept ‘interpretative treaty override’ may occur in the following situation. There is no controversy on the facts or treaty provision thereto, but on the interpretation of the particular treaty provision. In this case, the interpretations may be based on either restrictive or wide concepts that were neither expressed in writing nor intended by contracting States at the time of conclusion of the relevant tax treaty. Such misinterpretations may be labelled as interpretative treaty override. Treaty override by way of unilateral legislative or interpretative changes about qualification of income items inevitably forms an infringement of international principles, as well. Fourthly, KUTT uses the terms ‘use’ and ‘the right to use’ to cover, as royalty definition, contractual license fees, license fees ordered by law and damages for unlawful use. This interpretion is backed up by the OECD and UN Model Commentaries. If not, taxpayers can avoid the application of royalty clause in KUTT by intentional unlawful use or breach of royalty contract. Fifthly, the ‘use de facto’ concept as component of royalty definition should be differentiated from the ‘use in jure’ concept as reference to determination of domestic source in respect of royalty. The domestic source of royalty in the application of KUTT should be determined by reference to the ‘use in jure’ concept, according to the context of KUTT. The source determination of royalty by the ‘use de facto’ concept shall be an infringement of international principles as ‘legislative treaty override’ or ‘interpretative treaty override’. Sixthly, if the illegality of domestic ‘use de facto’ can be determined only by US laws relating to IPs, but the resultant damages from breaches thereof should be regarded as domestic-sourced, this argument shall be directly against KUTT Article 2(2) first sentence. The argument that domestic source of royalty should be determined by the ‘use de facto’ concept in the application of KUTT shall be against the context thereof. Thus, such legislation or interpretation supporting the above arguments forms an breach of KUTT as ‘legislative treaty override’ or ‘interpretative treaty override’. Seventhly, if the relevant KCIT clause intentionally changes qualification of damages for unlawful use of IPs from royalty to the other income to exploit specific tax treaty(such as KUTT) and the clause may be applied or interpreted validly in respect of royalty source determination, such legislation or interpretatin shall be not only against international principles, such as ‘the pacta sunt servanda’, ‘the good faith principle’, ‘the equality of nations’ etc., but also directly against KUTT Article 2(2) first sentence, Article 6(3), Article 14(4)(a) which function as special laws against domestic tax laws. In addition, the relevant KCIT clause leading to conflicts of source shall be against the ‘object and purpose’ or ‘context’ of KUTT. The relevant KCIT clause functions validly only in domestic enforcement procedures(such as withholding procedures) on royalty to the extent distrubuted or permitted by KUTT.