사업구조재편성에 대한 이전가격과세

Abstract

Cross border business restructuring by multinational corporations is not a strange word any more. It is accompanied by transfer of function, asset and risk between entities in different jurisdictions. A tax authority may well be interested in whether arm’s length compensation is paid in such a cross border movement because substantial economic interests are often to be transferred thereby. Some tax authorities apply substance over form principle to disregard such a transfer of function, asset and risk. Even when that is not the case, the determination of fair compensation for such transfer is far more difficult job both to tax authorities and taxpayers. Since 2005 the OECD has made efforts to build a common guideline for the transfer pricing taxation for business restructuring. This article analyzes such efforts and extends this analysis into Korean domestic tax laws and tax treaties. The authors found that the valuation of risk and intangibles is the key to transfer pricing taxation in this area. And the arm’s length principle is still applicable to business restructuring where resale price method, cost plus method, profit split method or transactional net margin method may be utilized.