조세조약 해석상 국내세법의 지위 - 조세조약상 ‘특허권의 사용’ 개념의 해석을 중심으로 -

Abstract

According to the general principle of interpretation of the tax treaty accepted by the OECD and most of its member countries, a country which applies a tax treaty has to interpret a term in the treaty according to the definition made in the treaty, and without such a definition, has to interpret it according to its ordinary meaning as the context requires. If such an approach does not result in a reasonable interpretation, the country has to resort to the meaning that the term has at that time under the law of that country for the purposes of the taxes to which the treaty applies. At this juncture, if a single term used in both a domestic tax law and a tax treaty has been borrowed from a non-tax law of the country which applies the tax treaty, it would be reasonable that the meaning given in the non-tax law is respected for the interpretation of the term under both the domestic tax law and the tax treaty. Such an interpretation depending on the non-tax law meaning may be overridden by the new statutory definition introduced in the tax law in the future. The courts in Korea have ruled in several occasions that the payment for the use of a patent for the manufacture of a product might not be determined as being sourced in Korea in case such a patent was not registered in Korea because the patent might not be regarded as being used in Korea under the tax treaty between Korea and the U.S. The reasoning for such decisions was that the meaning given to the term 'use' in the patent law had to be respected because there was no concrete definition both in the treaty and Korean domestic tax laws at the time of the cases. The courts believed that the use of patent may be found only in a jurisdiction where it is registered, because a patent exists only under the protection secured by the registration and it can be used only in a jurisdiction where it exists under the patent law. In 2008, the domestic tax laws of Korea introduced provisions that define the term 'use' both in tax treaties and domestic tax laws as "use for the manufacturing or the sale of a product irrespective of its registration in Korea". Under the international principle of interpretation of the tax treaty, the new provisions should have been respected. The current position taken by the courts does not seem to meet such an expectation. The courts do not pay attention to the statutory definition in the new provisions of the domestic tax laws. The rulings by the courts are explaining that the new definition may not overrule the meaning the old courts found because the tax treaty has to override the domestic tax laws. It is regrettable that the courts have characterized the issue in the cases as the conflict of qualification between tax treaty and domestic tax laws. The real issue in the cases is rather how to interpret a term in a tax treaty, which has already overridden the domestic tax laws for the solution of the conflict.