해외지급보증수수료의 이전가격과세에서 정상가격 산출방법의 위법성 판단 근거 및 실무상 운용의 문제점

The review of the Transfer Pricing Method of Intercompany Financial Guarantee Fee and the Court Proceedings

Transfer prices between multinational related parties are areas of intense interest in domestic taxes and tariffs. Because the transfer price is intercompany price, it is easy to manipulate the profit and cost and evade the due taxation. The National Tax Service(NTS) basically perceived that intercompany financial guarantee fee that the parent company received from the subsidiaries was so small and manipulate the transfer pricing. NTS had developed the model of normal value of the financial guarantee fee from 2008, and had collected about 300 billion won in corporate tax from 100 companies that have paid guarantees to overseas subsidiaries since 2012. However, the most courts decided that the NTS model is not a reasonable transfer pricing method. The reasons are that the informations was not open and unavailable, that used the bankruptcy data of only domestic companies and didn t reflect non-financial factors. Moreover it did include the implicit support that reflect the mother company s credit rate and subsidiary s status in the same group. The NTS appealed. However, when the appeal failed to persuade the rationality of the NTS model, NTS terminated the procedure by arbitration, and 34 out of 39 lawsuits were terminated by arbitration. The problem is that no regulations have the tax arbitration and there is no criteria when the court suggests arbitration. It is clear that the tax authority must not dispose the taxation that regulations allow. To addition it is necessary to confirm and review the illegality of taxation, instead of arbitration.