지식재산소득 관련 조세특례제도상 비용혜택연계접근법(Nexus Approach)에 관한 小考

This paper suggests some supplement and improvement points for “Nexus Approach” for the intellectual property preferential tax regime, such as ‘Patent box regime’, etc(hereafter, ‘P-Box’). In general, the IP preferential tax regime provides some kind of tax holidays like applying the special lower tax rate than general corporate tax rate. This preferential tax treatment stands on the basic principle of the spill-over effect from ‘research and development’ or intellectual properties. The IP preferential tax regime like ‘P-Box’ attracts useful research and development, and ‘P-Box’ makes the society to fill it's desirable needs for the IPs. In special, the P-Box makes a choice of the different way from the existing R&D tax treatments. It focuses on ‘Back-end’ of the R&D process, but not ‘front-end’ of the R&D process. This basic idea of the approach makes to prefer income from intellectual properties than others. However, ‘P-Box’ makes some kind of side effect like tax avoidance which it divides between the geographical location of intellectual properties and performing the research & development. That's why the BEPS Project makes the action(the Nexus Approach) for adjusting and controlling ‘P-Box’ reasonably. This paper consists of 3 parts. The First part explores core contents of the existing ‘P-Box’ cases. It focuses legislative cases from 4 countries, Belgium, France, the Netherlands, and the United Kingdom. In addition, this paper reviews the Korean case about Article 12 of the Restriction of Special Taxation Act, and the related rulings. The next part focuses on the Nexus Approach, and the Modified version of the Nexus Approach. The Nexus Approach heads to the attributable consistency between the performance of the R&D and the IP income based on the R&D. The final part reviews on some supplement and improvement points for the Nexus Approach. It focuses on applying conditions of the Nexus Approach：the qualifying range of Intellectual properties and the taxpayer, and the qualifying level of outsourcing R&D with related persons. This paper suggest some details for solving the above problem. It excludes the know-how, trade secrets, and marketing-related properties from the range of the qualified intellectual properties. By the way, it treats incorporated person as the PE by the same status. Finally, the qualifying level of outsourcing R&D with related person is justifiable, but supplements an adjusting power for making the fixed up-lift rate flexible to the tax authorities.