한·중 조세조약 해석에 관한 최근 대법원 판례 검토: 이중과세 회피를 위한 법인세법상 외국납부세액 공제제도와 OECD 모델조약 해석원칙을 중심으로 = Review of Recent Supreme Court Rulings on the Interpretation of the Korea-China Tax Treaty: Focusing on the Foreign Tax Credit System for Avoidance of Double Taxation and the Interpretation Principles of the OECD Model Tax Convention

다국어 초록 (Multilingual Abstract)

This study reviews and analyzes three Supreme Court rulings issued in the first half of 2024, related to the Korea-China Tax Treaty 「Agreement between the Government of the Republic of Korea and the Government of the People’s Republic of China for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income」 (hereinafter "the Treaty") and the foreign tax credit system under the Corporate Tax Act. The study first examines the foreign tax credit system, the interpretative principles of the OECD Model Tax Convention (MTC) Commentary, and the Vienna Convention, which are crucial for ‘common interpretation’ of tax treaties. It then analyzes how these interpretative principles were applied in the rulings.
All three cases involve the issue of foreign tax credits for taxes paid in China, focusing on the interpretation of Article 57 of the Corporate Tax Act and the Treaty. In the first case, the court ruled that foreign tax credits for local corporate income taxes were not directly allowed under the Treaty and its protocol. In the second case, the court found that in a "modified PE triangular case," Korea, as the country of the permanent establishment, could exercise its taxing rights before China, and thus, the Chinese withholding tax was not eligible for credit. In the third case, the court determined that a guarantee fee was "other income" rather than "interest" under the Treaty, and thus Korea had no obligation to relieve double taxation, as China’s taxing rights were deemed unlawful.
These rulings underscore the importance of common interpretation in tax treaty analysis and demonstrate how international legal principles are incorporated into domestic decisions, providing valuable insights for future international tax cases.