조세조약상 사용료소득과 사업소득 조항 적용의 충돌 = Conflicts of Qualification in Categorizing Royalty as Business Profits

다국어 초록 (Multilingual Abstract)

The Supreme Court of Korea overruled both Trial and Appellate Courts` decisions as to whether or not the income derived from use of the digital products of video programs for broadcasting, developed by its parent company, shall be attributed to the branch under paragraphs 2 and 3 of Article 8 of the Korea-US Tax Treaty (“the Treaty”). This is the first case that deals with qualification conflicts in tax treaties. The decision, however, seems to be controversial in categorizing royalty income as business profits by applying incorrect treaty provisions. According to the internationally accepted source rules, the income arising from digital products, royalty paid by the user of the intangibles, shall be treated as income of the owner or the developer. When the beneficial owner of the right of property is the permanent establishment (“PE”), the right or property giving rise to the royalties that is effectively connected with the PE shall be applied to the paragraph 6(a) of Article 8 (business profits) of the Treaty. Otherwise, the source rule described in paragraph 3 of Article 6 of the Treaty shall be applied. In this case, as the parent company is the developer and owner of the digital product, the PE is nothing but a user who shall pay royalty to the owner of the intangibles, the parent company. Thus, the applicable attribution principle of income to the PE in this case shall be related with Article 14, instead of Article 8, of the Treaty.

참고문헌 (Reference)

1 성선제, "조약의 사법심사 - 미국의 경우를 중심으로" 법학연구소 20 (20): 3-36, 2009

2 이용섭, "국제조세(개정증보판)" 세경사 2012

3 Wittendorff, J., "The Object of Art. 9(1) of the OECD Model Convention: Commercial or Financial Relations" 2010

4 Wattel, P.J, "The Legal Status of the OECD Commentary and Static or Ambulatory Interpretation of Tax Treaties" 2003

5 Ward, D.A, "The Interpretation of Income Tax Treaties with Particular Reference to the Commentaries on the OECD Model" 2005

6 Vogel, K., "The Influence of the OECD Commentaries on Treaty Interpretations" IBFD Bulletin 2000

7 League of Nations, "The 1933 League of Nations Draft Bilateral Convention for the Prevention of Double Taxation"

8 League of Nations, "The 1927 League of Nations Draft Bilateral Convention for the Prevention of Double Taxation"

9 Organization for Economic Cooperation and Development, "Tax Treaty Characterization Issues Arising from E-Commerce" OECD Committee on Fiscal Affaris, the Technical Advisory Group on Treaty Characterization of Electronic Commerce Payments 2001

10 McCormack, J., "Subject I-Is There a Permanent Establishment?" 2009

11 Organization for Economic Cooperation and Development, "OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations" 2010

12 Organization for Economic Cooperation and Development, "OECD Model Tax Convention" 2008

13 Organization for Economic Cooperation and Development, "OECD Model Tax Convention" 2010

14 Interpretation of Tax Treaties under International Law, "Interpretation of Tax Treaties under International Law" International Bureau of Fiscal Documentation 2004

15 Vann, R., "Interpretation of Tax Treaties in New Holland" 2010

16 Avi-Yonah, R.S, "International Tax as International Law-An Analysis of the International Tax Regime" Cambridge Tax Law Series 2007

17 Vogel, K., "General Report, in IFA, Cahiers de Droit Fiscal International Volume LXXVIIIa" IFA 1993

18 Ward, D.A., "General Principles of Treaty Interpretation" IFA Canadian Branch 1977

19 Organization for Economic Cooperation and Development, "Final Version of Parts I to III of the Report on the Attribution of Profits to Permanent Establishments: Part I(General Considerations), Part II(Banks), Part III (Global Trading)" 2006