국내 원천 사용료 소득 분류와 국제조세 문제

Abstract

This paper explores classification issues of income generated from intellectual properties(hereafter, IPs) in international taxation. In Korea, popular tax cases arise regarding the unregistered foreign patents and related payments frequently(hereafter, 'the unregistered foreign patent' problem). This problem also has legal connection to another problem based on the demarcation between service and know-how(hereafter 'the demarcation problem'). Following this diagnosis, this paper deals with two problems related Korean major tax cases : the ‘2012Du18356’ case (the Korean Supreme court), and the ‘2015Du950’ case (the Korean Supreme court). Chapter 2 is an overview of domestic legislation(the Corporate tax act and the adjustment of taxes act) and tax treaty articles for royalty income. In Chapter 3, it focuses on 'the unregistered foreign patent' problem and 'the demarcation problem'. In the course of legal analysis for some major related cases, it finds and suggests the legal and economic connected feature as known as 'the divulged(or publicly known) technology or knowledge'. Royalty income has the prerequisite which the connected IP must have economic power or produce economic benefit. In other words, it may be assessed that the IP in question has the economic ability to be paid from the Public. Where we levied taxes on the questionable IP income regarded as royalty income in Korea, we may need to anlayse the economic power or ability of IPs and related income periodically and geographically. We call this work as the economic analysis of IP income. Following this analysis, consideration in question for using the IPs is calculated as zero in Korea. There's nothing the royalties in '2012Du18356' case may be only classified as royalty income of the U.S. source. The demarcation problem has some improving points. In addition to the legal framework of IP(the undivulged technic or knowledge), The commentary of the OECD Model Convention and the commentary of the UN Model Convention choose the bidirectional and technical criteria, which comprises economic elements of IP. In special, it suggests some tax implication to us that it make much detailed standard for distinguishing IPs(Know-how in wider sense) from service.