國際稅法上權利金所得之課稅

Taxation on Royalties in International Tax Law

權利金所得來源地的判斷標準，有債務人居住地國原則與權利使用地原則兩種判斷標準。我國內國法採取使用地標準。在OECD租稅協定範本較接近採取債務人居住地國原則，聯合國租稅協定範本第十二條第五項規定也以「債務人之居住地國」為來源地原則。我國締結之租稅協定也多採取以「債務人之居住地國」為來源地原則，應優先內國法而適用。從而依據該租稅協定，如果我國居住者支付權利金時，則不論該智慧財產權在何處使用，其來源地為我國，並應就源扣繳所得稅。至於權利金所得之課稅權歸屬，雖然OECD租稅協定範本第十二條第一項規定考量權利人之研究發展之成本費用之扣除，建議由權利人之居住地國課稅。但聯合國租稅協定範本第十二條第二項則同時考量債務人之成本費用支出扣除，應有對應收入課稅，建議由來源地國與居住地國雙方國家稅收分享。我國所締結之租稅協定，也多採取稅收分享原則。

The judgment standard of the Sourceplace of Royalty Income is the principle of the residence country of debtor and the principle of country of the right which is used. Taiwan’s domestic law adopt the latter judgment standard. The version of the OECD Model Tax Convention on Income and on Capital is closer to the principle of the country where the debtor resides, and Article 12, paragraph 5, of the United Nations Model Tax Convention on Income and on Capitalis also based on the principle of the residence country of debtor. The tax treaties concluded by Taiwan, R.O.C. is also based on the principle that the country in which the debtor resides is the Sourcecountry of Royalty Income. According to this tax treaties, if the resident of Taiwan, R.O.C. pay royalties, regardless of where the intellectual property is used, the source country is Taiwan, R.O.C., and withholding tax should be taxed. Whereas the tax deduction of the cost of research and development of the right holder is taken into account in Article 12, paragraph 1, of the OECD Model Tax Convention on Income and on Capital, it is recommended that the State of residence of the right holder is taxable. However, Article 12(2) of the United Nations Model Tax Convention also takes into account the costs and expenses deductions of the debtor. Taxes should be levied on the corresponding income. It is recommended that tax revenues schould be shared between the source country and the country of residence. Taiwan, R.O.C. has also adopted the principle of tax sharing in the tax treatiesconcluded by Taiwan, R.O.C.