BEPS 프로젝트 Action 8-10의 실천적 의미와 한계에 관한 검토―무형자산, 저부가가치 그룹내부용역, 원가분담약정을 중심으로―

The BEPS projects was launched in 2015 to address the issue of base erosion and profit shifting, which had been difficult for OECD/G20 to deal withby the conventional international tax regime. This paper concerns these projects；what kind of advanced items the transfer price parts has compared to the current laws related to the transfer price guidelines and the Adjustment of International Taxes Act of the current OECD；whether there is a need to revise the Act；and how the direction should lead to if there are the needs. Also, it seeks to find the significant of the BEPS project by comparing the specific issues and the rulings of the court and the decisions of the tax referees on each issue of BEPS project (intangibles, low value-adding intra-group services, cost contribution arrangements), the court's precedent for each case, and discussing the limitations that still remain despite the launch of the BEPS project. Among the BEPS projects, the parts related to the intangibles have been amended in ways which the definition of intangibles was made clearer, the framework of comparability analysis and major comparability elements were proposed in detail, valuation techniques such as discounted cash flow method were introduced as the way of calculating the normal price of intangibles, and clarified that adjustments based on ex-post results are possible under certain condition for hard-to-value intangibles which are difficult to evaluate. It is believed that there is a general need for amendment in accordance with the revision intention of the Adjustment of International Taxes Act. The BEPS projects, on the other hand, adheres to the Arm's length principle while considering generally appropriate to use the profit split method for transactions involving intangible assets that are difficult to find comparable transactions. Given the history and characteristics of the profit split method, the method fits into the normal price calculation method that is most distant from the principle of the independent enterprise, which is the main principle of the transfer price tax system. Therefore, it is necessary to accept the uniqueness of the profit split method itself, and to seek the direction of the independent development. In the section on intra-group services of the BEPS projects, the contents about the lowvalue-added group intra-group services were added. In the case of low-value-added group intra-group services, a 5% profit margin is added to the service cost, and it is possible to use a simple calculation of normal cost in distribution according to the cost ration of each member. This simplified approach is expected to alleviate taxpayers’ burden and the relevant cost in the tax offices. It would be reasonable to apply this method to the Adjustment of International Taxes Act after further examination of the range of normal profit rate. On the other hand, such simplified approach is far from the traditional independent enterprise principle, since it determines the normal profit rate in advance and determines whether the transfer price corresponds to the normal price accordingly. In order to overcome the criticism that there is no practical meaning since it is difficult to find out how to measure contributions of participant for the part of the BEPS project cost contrition arrangements (CCA) in BEPS in the previous OECD transfer pricing guidelines, this study presents the types of CCAs and a detailed framework of normal price analysis. The current Adjustment of International Taxes Act specifies only the cost sharing arrangements related to the development of intangibles, but it is believed that it does not necessarily need to limit the application scope to intangibles. In addition, various indicators to measure the expected benefits are listed in parallel in the Adjustment of International Taxes Act, and it is necessary to provide criteria for selecting the most appropriate indicators based on the specificity of each issue. On the other hand, if the analysis framework proposed by the BEPS projects on the cost sharing agreement works properly to allow each participant to calculate the relative contribution, it is reasonable to expect that the principle of an independent firm in the traditional sense might not work as discussed in the profit split method. By applying the BEPS projects to the rulings of the Supreme Court or the decisions of the tax referee, it is possible to prevent the voluntary normal price calculation of the tax authorities and provide an evaluation materials by providing the framework and proposing various points of considerations to resolve the situation. However, on the one hand, the structural limitations of the transfer price tax system still do not provide a definite answer, and the tax authorities and taxpayers are likely to pay excessive price in the process of appeal. Although the transfer pricing tax system based on the principle of independent corporation is still widely used around the world, the contents of the BEPS projects do not adhere to this conventional principle. Rather, they use the profit split method or the uniqueness of the cost sharing commitment itself, proposing a more rational and systematic approach to the issues that are becoming problematic especially in the digital economy. By making specific analysis factors publicly available, the BEPS approach will play an important role in the development of the transfer pricing tax system in the future.