국제조세상 기술용역 제공에 따른 사업소득과 사용료소득 과세 구분에 관한 고찰 ― 중국과 한국의 사례 비교 분석을 중심으로 ―

Abstract

This paper focuses on comparatively reviewing the Chinese case and the Korean cases on classifying between technical service fee and royalties. The reviewed cases are based on tax issues about mixed contract with providing technical service and licensing in the context of international taxation. In detail, we found that there is similarity in the basic facts between theses cases, which scrutinized whether problematic consideration paid is regarded as royalties or not. First of all, Chapter 2 reviews the tax standard on royalties and business income roughly, which decides whether a company has a permanent establishment in problematic geographical area or not. Especially, Chapter 2 compares related contents(Article 12) of OECD Model Tax Convention with those of UN Model Tax Convention(Article 12 and Article 12A). Chapter 3 examines the facts and circumstances of the Chinese cases and the Korean cases. These reviewed cases are divided into two parts. One part includes general tax cases related with categorization on technical service fees and royalties in China and Korea. Another part includes tax cases about classifying incomes with mixed contract of providing technical services and licensing. With respect to these similar facts and circumstances, the Chinese Court and the Korean Court offered different judicial decisions based on incompatible grounds. Specially, this paper scrutinizes closely into logical backgrounds and its tax implication provided by the Chinese and Korean Court.