국조법상 원가분담 약정에 있어서과세관청의 경정권 행사요건에 관한 고찰

Abstract

Article 6-2 of the Law for Co-ordination of International Tax Adjustment (hereinafter “LCITA”) as amended on May 24, 2006 newly introduced provisions on the cost contribution arrangement (hereinafter “CCA”). A great part of those provisions seems to originate from Chapter 8 of the OECD Transfer Pricing Guidelines and the U.S. Treasury Regulation §1.482-7. The LCITA provides that under a CCA, which can apply only to development of intangible property, the cost incurred by a “domestic participant” should be consistent with the arm’s length principle and, in other words, proportionate to its anticipated benefits from the CCA. Under the LCITA, the term “anticipated benefit” means either of the followings: saving of cost, increase in sales or operating profits, or increase of units used, produced or sold. When and if the cost incurred by a domestic participant does not meet the aforementioned requirement, the tax authorities may adjust the domestic participant’s cost incurred (hereinafter referred to as “Type 1 Adjustment”). Even when the domestic participant incurred cost in accordance with arm’s length standard, if the projection of the anticipated benefits turned out to be false, the tax authorities may still adjust the cost incurred by the domestic participant (hereinafter referred to as “Type 2 Adjustment”). Type 2 Adjustment is made when the share of the “realized” benefit turns out to be greater or smaller than the share of the anticipated benefit by 20% or more. The LCITA seems to provide that the tax authorities may still make Type 1 Adjustment even when the tax authorities cannot make Type 2 Adjustment because the discrepancy between the realized and the anticipated benefits falls within the above 20% range. Considering that the tax authorities are still allowed to make Type 2 Adjustment even when there is an extraordinary event beyond the taxpayer’s control, I believe that the provisions on CCA of the LCITA as a whole tend to favor the tax authorities to an excessive degree and thus need to be amended. It should also be noted that the LCITA provisions on CCA are too brief and leave too much uncertainties with respect to their interpretation, which could be solved for the time being only by referring to relevant part of the OECD Guidelines or the U.S. Treasury Regulation §1.482-7, but should be, in the long run, dealt with by elaborating the relevant LCITA provisions in more details.