그룹사간 무형자산 이전에 관한 과세문제

Abstract

Taxation of transactions involving intangible assets is not systematically established despite the importance and frequency of the transactions. Especially, transfers of intangible assets among affiliates within multinational corporations trigger numerous tax issues such as transfer pricing, withholding tax and tax treatment of co-development of intangible assets. In this dissertation, a comparative review on the tax treatment of transactions involving intangible assets was performed by examining Korean tax law, OECD Transfer Pricing Guidelines and U.S. tax law on the issue of the definition of intangible assets, transfer pricing of intangible assets and cost sharing arrangement. In relation to the definition of intangible assets, Korean tax law provides for the definition in the context of amortization, withholding tax on Korean-source income and co-development of intangible assets based on a cost sharing arrangement. However, it is only enumeration of definitions for specific intangible assets and the general definition has not been provided as to the scope of intangible assets which is constantly changing. Thus, the general definition of intangible assets is necessary under Korean tax law which covers the general characteristics of intangible assets. OECD’s approach is basically similar to that of Korean tax law, but distinguishes trade intangibles and marketing intangibles and treats the two categories differently. It is problematic to treat the transfer pricing issues stemming from transfers of intangible and tangible assets in the same manner considering the unique characteristics of intangible assets. However, Korean tax law gives the same treatment to the transfer pricing issues involving transfers of intangible and tangible assets. OECD takes the same approach while U.S. tax law takes a different approach. Regarding co-development of intangible assets, rules on cost sharing arrangements were newly introduced into Korean tax law in May 2006, and co-development of intangible assets is treated as such for tax purposes if the underlying cost sharing arrangement satisfies the requirements under the law. Korean tax law takes the same approach as that of OECD in that the cost should be reasonably shared based on the anticipated benefits. However, the Korean rule is unique in that the tax authorities may make tax adjustments if the amount of actual benefits is 120% or more or 80% or less of the amount of anticipated benefits.