조세조약상 무차별원칙 및 관련 국내외 판결의 개관

The primary purpose of tax treaties is to allocate taxing rights between contracting states and prevent double taxation, thereby promoting international trade and investment. The principle of non-discrimination in tax treaties ensures that residents of contracting states are not discriminated against based on nationality or other factors in tax matters, thereby allowing the free flow of personal and capital resources and removing barriers to trade and investment. To this end, the OECD Model Tax Convention, the UN Model Tax Convention, and the U.S. Model Tax Convention include provisions on non-discrimination. Most tax treaties concluded based on these models also contain non-discrimination clauses. Consequently, there are many issues and active discussions related to the principle of non-discrimination in tax treaties, especially in Europe. On the other hand, although most of Korea's tax treaties also include non-discrimination clauses, there have been only few cases where this principle has been a central issue, and related discussions are not frequent. However, the principle of non-discrimination in tax treaties can become a matter of contention at any time when taxation rights are in question, especially concerning states that include such provisions in their treaties. Although the commentary on the OECD Model Tax Convention was developed through meetings of experts from various countries and has been revised multiple times, there are still many areas where opinions differ regarding the interpretation of the non-discrimination principle, such as the treatment of dividends received in respect of holdings owned by permanent establishments and the extension of benefits under treaties with third countries. Therefore, it is necessary to clarify the interpretation of the non-discrimination principle in Korea's tax treaties. Unlike the general constitutional principle of equality or the non-discrimination clauses concerning the free movement of capital under the Treaty on the Functioning of the European Union (TFEU), where rational grounds for discrimination, such as public interest, can be exceptionally allowed, no such exceptions are permitted under the non-discrimination principle of tax treaties. This also requires a clear interpretation regarding the scope and requirements of its application. In foreign cases, as seen in the European Court of Justice’s pension fund-related cases, the non-discrimination principle under tax treaties may overlap with the non-discrimination clause under the TFEU. Generally, the TFEU covers a broader range of discrimination but allows exceptions based on public interest, which highlights the ongoing significance of the non-discrimination principle under tax treaties. Furthermore, the determination of whether there has been a violation of this principle often hinges on the choice of the counterpart in comparison. This can be complicated, as seen in the French case regarding the special tax on real estate, where multiple treaties were considered, or the German case regarding the income of a U.S. lawyer, which involved the income of other countries. Additionally, the outcome could vary depending on the interpretation of the reasons for discriminatory treatment, as seen in the UK case related to advance corporation tax on dividends. Even though the non-discrimination principle in tax treaties is mostly based on model tax conventions, making the content of the treaties similar to one another, and despite the existence of commentaries on these models, the interpretation and application thereof are not always straightforward. For the non-discrimination principle in tax treaties to effectively remove barriers to trade and investment by ensuring the prohibition of discrimination in taxation matters, the clarity in its interpretation and application is essential. This ensures predictability for companies and individuals from contracting states engaging in trade, investment, and other business activities. It would be desirable for more cases related to the non-discrimination principle in tax treaties to accumulate, leading to deeper discussions.