한・미조세조약상 미등록 특허사용료의 소득원천에 대한 연구

Korea'exports account for more than 40% of its GDP. And the United States is one of Korea's major export destinations. Therefore, Korean companies should be well prepared to avoid legal disputes in the process of manufacturing products in Korea and later selling them in the United States. Patent license agreements can be understood as part of such preparation. Patents must registered in each country according to the laws of each country. Therefore, there may be patents registered in the United States that are not registered in Korea and vice versa. In tax law, if a Korean company enters into a contract with a U.S. corporation that holds a patent registered in the U.S. but not registered in Korea, and pays the U.S. corporation for using the patent in the process of producing products in Korea, whether the income can be considered as royalty income with a domestic source. In international tax cases, the source of income is an important issue in determining the tax sovereignty of the source country. Regarding the above issue, the Supreme Court has previously concluded that royalty income from the domestic use of an unregistered patent is not taxable in Korea due to the denial of domestic origin based on patent residency under the Patent Act. However, the legislator amended the Corporate Income Tax Act on December 26, 2008, to allow taxation in Korea. However, even after the amendment, the Supreme Court still made the same judgment as in the past. This article examines the appropriateness of the Supreme Court's judgment. As we understand it at present, the key issue in this regard is whether there is any context in the US tax treaty that would suggest that only patents registered in the source country are eligible for withholding as royalty income. In other words, the question is whether there is a treaty context under Article 2(2) of the US-Korea Tax Treaty that limits the application of the domestic law of a Contracting State, i.e. Article 93(8) of the Corporation Income Tax Act. In this article, we have argued that a treaty context must be clearly established to authorize the exclusion of valid domestic law, and that the burden of proof is on the party asserting the existence of the context, and that the discussion so far has led to the conclusion that such a showing has not been made. Nevertheless, the Supreme Court has still denied the application of Article 93(8) Da of of the Corporation Income Tax Act, citing the existence of a treaty context. The validity of this conclusion is highly questionable. Although there have already been a number of Supreme Court judgments in this regard, it is necessary for the court to make a careful judgment once again when considering future taxation issues due to the nature of Korea's economic structure.