조세조약의 해석과 국내세법

Abstract

First, as a basic consideration in the interpretation of tax treaties, a common interpretation for the avoidance of double taxation and double non-taxation and the balance of the distribution of taxation rights should be reviewed together. Second, there is room for the subject of application of Article 3, Paragraph 2 of the OECD Model Treaty to include not only terms not defined in tax treaties, but also terms that are insufficiently defined. Third, the context of the OECD Model Treaty is generally a broader concept than the context of the Vienna Convention, and there is room for it to be seen that respect and fairness in the distribution of taxation rights falls within an implied context. Fourth, in accordance with Article 3, Paragraph 2 of the OECD Model Treaty, the domestic law of a Contracting State applicable to the interpretation of a tax treaty includes both the law of the State of source and the law of the State of residence. Due to the effect of Article 23A and B, however, in reality the domestic law of the State of source applies, and the domestic law of the State of residence has no opportunity to apply. Fifth, if the application of amended domestic law of a Contracting State to terms not defined in the OECD Model Treaty makes the treaty partially inoperative, the application of the domestic law is excluded by the context. In this regard, whether or not it is partially inoperative must be judged by considering whether the balance of the distribution of taxation rights is restored or broken due to the application of the domestic law. Sixth, in the case of a tax treaty that does not follow the OECD model treaty revised in 2017, whether or not the domestic law of the Contracting State amended after the conclusion of the tax treaty is applied to terms not defined in the tax treaty should be judged by considering whether or not the application of the domestic law recover the balance of the distribution of taxation rights. Seventh, Article 5 of the International Tax Adjustment Act, amended in 2019, should be seen as meaning to apply Korea's domestic law under the control by context, as in Article 3, Paragraph 2 of the OECD Model Treaty, with regard to tax treaty terms. Eighth, it is doubtful that the Commentary on Article 23 of the OECD Model Treaty, in the case concerning 'whether a foreign organization is a legal entity under tax law and the attribution of income’, overextended the scope that the taxation power of the residence State is subject to the tax law of the source State in order to implement the so-called principle of common interpretation. Ninth, the 'use' of a patent stipulated in Article 6, Paragraph 4 of the Korea-US Tax Treaty is a term that is not defined in the treaty, so persuant to Article 2, paragraph 2 of the treaty, should be interpreted according to the meaning of the domestic law of Korea that is source State unless otherwise the context requires. Korea’s corporate tax law, which was amended after the conclusion of the Korea-US tax treaty, stipulates ‘remuneration for the de facto use of domestic unregistered patents’ as royalty income. If there exists an imbalance in the distribution of taxation rights under the Korea-US tax treaty with respect to the remuneration for the use of domestic unregistered patents, it is not inconsistent the context to interpret the 'use' of patent rights under the Korea-US tax treaty with the meaning of the Korean corporate tax law which was amended to correct that imbalance. Tenth, the definition of capital assets under the US tax law may fall within the context which is the standard for interpreting the Korea-US tax treaty. The definition in the US tax law as above should, in principle, be the one at the time of the conclusion of the Korea-US tax treaty.