원가분담약정의 정상원가분담액에서 제외되는 무형자산의 사용대가 규정에 관한 고찰

Cost sharing agreement (“CSA”) is an arrangement among corporate partici- pants to the agreement to share the cost and risk of developing properties, mainly, intangibles. The agreement also allows the participants to own their proportionate share of the benefits to be derived from that intangibles. CSA has been particularly popular among affiliated corporations of the U.S.-based multinationals in that it can replace the licensing transactions. However, in accounting practices involving CSA, some provision in Korean regulations on CSA might cause interpretational problem. That is partly because the provision is undetailed and inflexible. The provision has not been changed since its legislation. One example that causes such interpretational problem is as follows；'considerations for the use of intangibles made available to a qualified CSA should be excluded from arm's-length intangible development costs.' As the tax treatment and implication varies considerably with the interpretation on this provision, it is crucial for both a taxpayer and a tax authority to have an appropriate interpretation on this clause. U.S. Treasury Regulations on CSA, which had influence on Korean regula- tions on CSA when Korean regulations were designed, have continually been changed to reflect various needs and requests arising from real practices since they were legislated. Consequently, with the research on the history of U.S. regulations on CSA, one can expect to find clues to correctly interpret the provision in question, and to find a way to complement current relative Korean provisions. With that, it can be inferred that the considerations for the use of intangibles that should be excluded from the deductible cost pool means buy- in payments, which is a payment made by a new participant to an already existing CSA for obtaining an interest in pre-existing intangibles used in prior CSA activity. Although there has been a request for revision after a revenue ruling on this provision was provided several years ago, the provision has not been revised yet. In contrast, the corresponding U.S. regulations have been revised contin- ually reflecting the result of relative cases and several hearings on this issues. As such, this comparative legal study on the U.S. relative regulations leads to a proper interpretation and addresses such needs to revise relative Korean regulations on CSA.