국내 미등록특허에 따른 지급금의 과세 여부 ―최근 발견된, 조약체결 당시의 입법자료가 조약해석 전거인지를 논의소재 삼아―

This article critically examines the issue of taxing payments for the use of unregistered patents in Korea. The issue of taxing payments for unregistered patents is not simply whether a tax treaty adopts the principle of the place of use or the principle of residence of payor. Rather, it stems from the fact that the Korea-U.S. Tax Treaty (KU treaty) establishes its own criteria for determining the source of income (Article 6) and includes a special provision (Article 4) that excludes taxing rights if the income is not treated as income from sources within contracting states. The issue of taxing royalties is also affected by the fact that there are a series of Supreme Court of Korea precedents interpreting the meaning of the specific terminology (“the use of ... property”) in the KU treaty. This article argues that while precedents are important, they should not blindly ignore legal inconsistencies or recently discovered legislative records. The Supreme Court of Korea has previously ruled, based on a narrow view of “context” and “ordinary meaning of the text,” that it is difficult to conceptualize the royalties for the use of unregistered patents under the KU treaty’s framework, especially given the principle of territoriality for registered patents. However, in the field of international taxation, the scope of “context” in tax treaties is often interpreted more broadly than merely the materials commonly agreed upon by both contracting states. From this perspective, legislative materials that emerged during the tax treaty’s ratifying process should be considered part of its context, and even if not, they should serve as a legal basis for interpreting the “ordinary meaning of the text.” Therefore, the recent discovery of legislative records, such as parliamentary notes related to the KU Treaty’s royalty provisions, could provide the necessary context to reinterpret the taxability of unregistered patent royalties or influence the ordinary meaning of the terms in the KU treaty’s royalty income provisions. Ultimately, the issue hinges on the interpretation of Article 6 of the KU Treaty. The core point of contention is the phrase, “paid for the use of, or the right to use, such property within that Contracting State.” Taking into account the context, the ordinary meaning of the text, the treaty’s purpose of preventing double taxation, and the legislative intent of the National Assembly of Korea at the time of ratification, a more compelling interpretation emerges. Specifically, that “use” under the KU Treaty includes the use of unregistered patents, at least when the payment is tied to crucial manufacturing activities, and the payment for such use should be treated as taxable income under KU treaty.