국제조세조정에 관한 법률 상무형자산의 이전가격 관련 규정에 대한 연구

In an effort to resolve the current issues related to Base Erosion and Profit Shifting (BEPS) by multinational enterprises (MNEs), the Organization for Economic Cooperation and Development (OECD) has agreed to undertake the "BEPS Project" in 2012 and has announced "Action Plan on Base Erosion and Profit Shifting" in July 2012 to implement the Project. As a part of the Action Plan, an in-depth discussion on transfer pricing aspects of intangibles was initiated, and outputs including amendments of the OECD Transfer Pricing Guidelines, possibly of the Model Tax Convention, and of domestic tax laws are to be developed by September 2015 upon the consultation among the members of the OECD in order to strictly handle the BEPS related to intangibles. The Law for the Coordination of International Tax Affairs (LCITA) does not define intangibles subject to the transfer pricing regulations. The LCITA only exemplifies the factors considered when determining an arm's length price of intangibles or selecting appropriate comparables and defines intangibles for the Cost Sharing Arrangements purpose. On the other hand, providingvarious examples of intangibles, the OECD Transfer Pricing Guidelines define the term intangible property as “valuable immaterial assets associated with commercial activities including marketing regardless of whether they are listed on the company's balance sheet.” Furthermore, in the recent discussion on amending the OECD Transfer Pricing Guidelines, a debate about adding new types of intangibles such as location savings, assembled workforce, and group synergiesother than traditional types of intangibles is now in progress. The LCITA does not specify any transfer pricing method for determining an arm's length price of intangibles as well. Accordingly, rather than directly valuing intangibles, indirect valuation methods such as Comparable Uncontrolled Price (CUP) method or derivation of the residual value of intangibles by determining profits after functional returns have been generally used in the judicial precedents. On the contrary, the OECD Transfer Pricing Guidelines accept to apply the resale price method, profit split method, and direct valuation techniques premised on the existence of reasonable assumptions in valuing intangibles, other than the CUP method. For these reasons, it is required that the LCITA should clearly define intangibles from theperspective of transfer pricing and set more detailed guidance on a transfer pricing method applied to intangibles in order to reduce potential tax disputes between tax authorities and taxpayers by ensuring transparency in the application of subjective judgments in tax audits and improve tax compliance of taxpayers.