권리사용료의 관세부과 요건에 관한 연구

Abstract

A Study on Requirements for Imposing Customs Duties on Royalties and License Fees Kim, Hyoung-won There is growing importance among rights holders as well as the general public on the need to protect intellectual property rights such as patents, trademarks, designs, etc. On the other hand, “know-how” is considered as an unregistered intellectual property right and despite exhibiting conceptual vagueness, it is widely used in cross-border transactions, particularly in describing technology transfers. Where importing patented goods or technology know-how, the need arose to calculate customs duties by adding royalties and license fees (for using such patent or know-how) to the imported goods price. Against this backdrop, Korea has imposed duties including royalties and license fees pursuant to relevant rules such as the Customs Act and the Notice on Determining the Taxable Value of Imported Goods, and by referring to the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade (also referred to as GATT Valuation Agreement) of, and advisory opinion by the World Trade Organization (WTO). Nevertheless, regulatory provisions on customs valuation of royalties and license fees are ambiguous and delegated by administrative rules; thus, legislative improvements are imperative. This paper aims to understand the requirements for imposing customs duties through reviewing existing doctrines, court decisions and administrative adjudications, the Korea Customs Service’s rules, and foreign cases, and then to point out regulatory issues. Of note, this paper intends to explore problems of administrative rules which impose the burden of proof on taxpayers as to separating royalties and license fees (for use of patent or know-how) added to the price of imported technologies and imported goods, and as to calculating unrealized royalties and license fees. In conclusion, this paper proposes legislative improvements based on tax laws and provisions, and Supreme Court precedents.