한･미 조세조약상 국내원천 사용료소득의 증명책임

Royalties paid by a domestic corporation to a foreign corporation can sometimes contain various types of income, such as royalties for patents, know-how, and copyrights, etc. However even for Even if such amounts deemed qualify as royalty income under the Corporate Income Tax Act, Korea's taxation rights or the and applicable limited tax rate may vary depending on the category of royalty income under the tax treaty. Under the Korea-US Tax Treaty, the burden of proof regarding the types and scope of royalty income should be handled as follows: First, regarding the burden of proof in tax litigation, it is reasonable to modify the legal requirement classification theory to place the burden of proof on the tax authority for items that increase the tax base or tax liability (e.g., revenue, sales tax), while the taxpayer should bear the burden of proof on the taxpayer for items that decrease or eliminate the tax base or tax amount liability (e.g., expenses, purchase tax). Furthermore, issues such as the biased concentration (uneven distribution) of evidence to taxpayer or the taxpayer's failure to submit tax documentation to litigation should be handled under a subjective burden of proof (burden of production) rather than an ex ante, objective burden of proof (burden of persuasion). Second, if the amount paid by a domestic corporation to a US corporation for the use of domestically unregistered foreign patents, copyrights, know-how, etc. falls entirely within the scope of domestic-source royalty income as defined in Article 93, Paragraph 8 of the Corporate Tax Act, or if it can be proven that the royalty income was the primary purpose of the payment, then the amount is subject to taxation under the Corporate Tax Act. If there is a portion of the above amount that is excluded from Korea's taxation rights according to Article 6, Paragraph 3 of the Korea-US Tax Treaty (e.g., royalties for domestically unregistered foreign patents), that Korea-US Tax Treaty provision is a non-taxation/reduction provision and thus an extinction provision, and therefore the burden of proof regarding its existence and scope should be considered to be on the taxpayer. Third, the US tax law and case law generally presume that the IRS's tax assessment and notification of tax deficiencies are accurate in tax cases, placing the burden of proof on the taxpayer contesting such payments. Furthermore, the requirements and scope of Section 7491 of the US Internal Revenue Code, which exceptionally shifts the burden of proof to the IRS, are quite limited, and the remaining exceptions do not appear to be actively applied. Furthermore, US courts appear to require taxpayers to submit evidence superior to the the evidence submitted by IRS or with significant probative value regarding the existence and scope of foreign-sourced income, even at the stage of US domestic tax law before the application of the tax treaty. Considering these circumstances from a reciprocity perspective, it is reasonable to place the burden of proof on the taxpayer regarding royalties for domestically unregistered foreign patents, which are exempt from taxation under the Korea-US Tax Treaty, among domestic-sourced royalty income received by US corporations under the Corporate Tax Act. Fourth, considering that evidence regarding a foreign corporation's domestic source income is biasedly concentrated to foreign corporations and that tax authorities' investigations of foreign corporations are considerably limited if the foreign corporation does not have a domestic place of business, it is reasonable to place the subjective burden of proof (burden of production) on the taxpayer regarding the royalty income from domestically unregistered foreign patents under the Korea-U.S. Tax Treaty, even if the tax authorities bear the burden of proof regarding whether the amount recognized as domestic source royalty income under the Corporate Tax Act falls within royalty income above.