법인세법상 해외통신사업자가 받은 통신매체 이용대가의 소득구분 — 대법원 2008.1.18. 선고 2005두16475판결을 중심으로 — = Under Korean Corporate Income Tax Act, Characterization of Income Derived by a Foreign Transmission Medium Operator from Transmission Medium Use Agreement with Korean User

다국어 초록 (Multilingual Abstract)

Under Korean Tax Law, basically, business income derived by a foreign company is taxable in Korea only if attributable to a Korean permanent establishment. On the contrary, generally, a foreign company's, royalty income is taxable if arising in or paid in Korea, even if the income is not attributable to a Korean permanent establishment. Owing to the different tax burden between business income and royalty income, whether income derived is to be characterized as royalty income or business income is a very important matter for foreign company.
The Supreme Court Decision rendered on January 18, 2008. Case No. 2005Du16375(the “Decision”) held that the income of a foreign transmission medium operator such as a satellite operator and a cable operator(the “Foreign Operator”) from transponder use agreement or cable capacity use agreement with a Korean user was not subject to taxation in Korea, since the income was not royalty income but business income. The case involved contracts between the foreign operators of satellite systems or cable systems and a Korean user. Under the contracts, the operators agreed to transmit data through the satellite, cable, or internet backbone network. For example, Hongkong-based operator of AsiaSat agreed to transmit signals from AsiaSat using one of the transponders installed on the satellite.
The Korean tax authorities argued that the agreement involved the grant of a right to use equipments such as the transponder and the submarine cable and that the income derived was therefore taxable as royalty income under the Korean Corporate Income Act.
The Supreme Court rejected the argument of tax authorities, stating that the contracts required the foreign operators to render continued business services to the Korean user, and did not involve the grant of rights or the rental of equipments. Accordingly the Court held the income earned by the foreign operators was business income.
The decision is to be justified by not only the proper interpretation of Art. 99. of Korean Corporate Income Tax Act and Art. 662. of Korean Civil Act but also the international criteria. The commentary of OECD Model Tax Convention on Income and on Capital states that royalty, in respect of licence to use equipments, is income to the recipient from letting or leasing the equipments. In addition, OECD TAG set criteria for determining 'equipment use'. To be equipment use, the criteria required ‘customer have physical possession and control over the equipments', ’Provider do not bear any risk of substantially diminished receipts or substantially increased expenditures’, etc. None of the conditions were fulfilled in the case. Therefore, according to the OECD's criteria, the operator's income shall not be characterized as royalty income.

참고문헌 (Reference)

1 이수일, "통신공학기초" 상학당 2006

2 이호웅, "최신정보통신의 이해" 기한재 2004

3 장인태, "조세법연구(III)" 세경사 1997

4 WilliamSchweber, "전자통신시스템" 사이텍미디어 2003

5 천종호, "선박임차인의 법적지위" 2006

6 삼일회계법인, "삼일총서-국제조세편"

7 사법연수원, "법인세법" 2006

8 민일영, "민법주해(ⅩⅤ)-채권(8)" 박영사 1992

9 김상용, "민법주해(Ⅴ)-물권(2)" 박영사 1992

10 이용섭, "국제조세의 이론과 실무" 세경사 2003

11 김인근, "국제조세의 이론과 실무" 광교이택스 2006

12 김영근, "국제거래조세" 세경사 2003

13 Parul Jain, "The Coming Age of International Tax Jurisprudence in India" Nishith Desai Associates 2006

14 "Tax Treaty Characterization Issues Arising From E-Commerce, Report to Working Party No. 1 of the OECD Committee on Fiscal Affairs, by the Technical Advisory Group(TAG) on Treaty Characterization of Electronic Commerce Payments"

15 Ned Shelton, "Interpretation and Application of Tax Treaties" LexisNexis 2004

16 Shagoofa Khan, "Country Report 2003-India, American Bar Asso" 2003

17 OECD, "Committee on Fiscal Affairs, Model Tax Convention on Income and on Capital"

18 국세청, "2004 개정세법해설"