OECD 이전가격지침에 따른 이익분할방법 적용에 관한 연구- 이익분할방법을 적용하기에 적합한 상황 및 이익분할기준을 중심으로 -

The purpose of this article is: (i) to evaluate the provisions on the profit split method in the International Tax Coordination Law(including its Presidential Decree and Enforcement Rule)(the “ITCL”) based on an analysis of the OECD Transfer Pricing Guidelines on the profit split method(the “OECD PSM Guidelines”) which were revised in June 2018 as a result of the OECD BEPS Project, and (ii) to review recent domestic tribunal and court cases as well as the representative tribunal and court cases of the United States and Japan in light of the OECD PSM Guidelines and the EC Practical Guidelines on profit split method(which were made in March, 2019)(the “EC Practical Guidelines”)(the latter being based on the OECD PSM Guidelines). The central themes of the discussion are the ‘circumstances where profit split method may be appropriate’ and ‘profit split factors’, which are the two big issues in relation to the application of the profit split method. The transfer pricing part of the BEPS Project (which was initiated by the OECD in 2013 to prevent base erosion and profit shifting ) were performed under the common mission of “Aligning transfer pricing results with value creation”. The lower mission relating to the profit split method was to “clarify the application of the transfer pricing methods, in particular profit splits, in the context of global value chains”. However, the section on the analysis of global value chains was excluded from the final OECD PSM Guidelines. It seems that the OECD has reflected the concern that an emphasis on the value chain analysis might unduly elevate the significance of profit splits even in cases where profit split method is not the best method. As a result, to align transfer pricing results with value creation, a new circumstance where profit split method may be appropriate has been added to the OECD PSM Guidelines and more specific guidance on the profit split factors, as well as the criteria to determine whether it may be appropriate to apply profit split method, were also provided. It is viewed that taxational or interpretational criteria in applying profit split method, which has a reasonably high degree of specificity, have only recently been established by the OECD. However, the provisions on the profit split method have not been updated in the ITCL even though other areas of the OECD Transfer Pricing Guidelines (July 2017 Edition) have been reflected in the ITCL in early 2019. In these circumstances, it seems to be worthwhile to evaluate the ITCL based on the OECD PSM Guidelines. The results of the evaluation indicate that it is necessary to add to the ITCL new circumstances where it may be appropriate to apply profit split method and, for clarification, the criteria by which those circumstances can be identified. In addition, by studying examples of legislation from other countries, it is also necessary to review adding to the ITCL more specific guidance on the profit split factors (especially cost factors) in calculating contribution of the parties to the transaction. Also by analyzing examples of profit split which are provided in the OECD PSM Guidelines and the EC Practical Guidelines, further practical yardsticks for judgment can inform the question of whether or not to apply profit split method in real world cases. In particular, by contrasting the examples which belong to ‘highly integrated business operations’ and those which belong to ‘business operations integrated to some degree’, it is possible to figure out to some extent whether or not activities of the two parties belong to ‘highly integrated business operations’. Finally after reviewing foreign and Korean tribunal and court cases on profit split method based on the OECD PSM Guidelines and the EC Practical Guidelines, it was reaffirmed that there is a need for the criteria to determine the circumstances where profit split may be appropriate, and the specific guidance on profit split factors.