사업조직 재편에 대한 이전가격세제에 관한 소고

It is a fact that there are scarce academical discussions on the issue of the transfer pricing tax system on ‘Business Restructuring’. In accordance with the OECD Transfer Pricing Guidelines, business restructuring applies to the transactions, a subject of transfer pricing tax regime. Firstly, in the case of applying the Arm’s length principle to the business restructuring itself, the ‘commercial rationality’ is a standard of judgment, and the Functions·Assets·Risks analysis under the purpose of taxation is just one of the factors for the judgements of commercial rationality aforementioned. That is the reason why only based on the Functions·Assets·Risks analysis results alone, it is not advisable to make a retrospective judgment that the business restructuring is contrary to the Arm’e length principle. Secondly, in the case of applying the Arm’s length principle to the compensation following the business restructuring, the Arm’s lenth principle should be applied in consideration of the broader discretion approved in the business restructuring. However the form of compensations due to unique circumstances in the business restructuring, could be variable, the arm’s lenth principle should be applied not limited to the compensation itself, but also encompassing various types of transaction conditions that can be evaluated as compensation. However, there may be some problems in practice when applying the transfer pricing tax regime to the business restructuring. Firstly, it is a matter of setting standards for ‘commercial rationality’. As described above, the analysis of functions, assets, and risks conducted according to taxation purposes cannot be used as it is to judge for the commercial rationality. It might be possible to refer to rullings by the Supreme Court in relation to the responsibilities of directors of corporations under the Commercial Law, but in a practical sense, abstract court rules such as the principle of good faith or documentary evidence and procedures held by the Supreme Court's judgment, are insufficient to utilize the elements of commercial rationality. It would be rather proper to set a separate criterion for the judgment of ‘commercial rationality;, such as FAR analysis for tax purposes. Secondly, when intangible assets are involved when applying arm’s length principle to the form of compensations, valuation issues of these intangible assets and compensations might be difficult. According to the current OECD Transfer Pricing Guidelines, individual intangible assets subject to transfer transactions are determined first then the valuations should be performed, excluding intangibles such as synergy effects, which are not determined to be the intangible assets. However, in the real world, these intangibles are transacted as a material part of the business restructuring under the name of ‘premium’ or somethingelses, in the real transactions. So it is possible to consider expanding the category of intangibles, in the respect of those actual transactions.