이전가격 금융거래에서의 정상이자율 - 대법원 2012. 9. 13. 선고 2010두6137 판결 평석 -

초록

This article reviews an interesting decision rendered on Sep. 13, 2012, by the Supreme Court of Korea(2010du6137, “Subject Decision”) with respect to the comparability of a comparable uncontrolled transaction under the Korean transfer pricing taxation regime. In this case, the controlled transaction is the issuance of the assets-backed securities underlying a bunch of bad debts between the plaintiff taxpayer and LSIF, its Irish related-company(the interest rate of 18% per annum), whereas the comparable uncontrolled transaction used by the Korean tax authority is a loan arrangement of LSIF from a domestic commercial bank for the use of the ABS purchase(the interest rate of 8.5% per annum). The Subject Decision ruled that the loan arrangement can not be used as a comparable under the comparable uncontrolled price(CUP) method for the transfer pricing adjustment mainly because the two transactions are separate and independent financing arrangements having materially different conditions such as funding amounts, loan-to-value rates, maturities, etc. Such result looks quite different from the other earlier Supreme Court decision(2009du 15357, “Prior Case”) that conceded the comparability of an uncontrolled loan arrangement under the similar financing structure of this case. In the Prior Case, the Supreme Court reasoned that although the two transactions look uncomparable in form just like this case, the controlled transaction would have been achieved in substance under the same conditions of the comparable loan arrangement. The reverse outcome between the two based on a mere difference of the underlying facts presents very well the reality of the difficulties in the application of the transfer pricing taxation in Korea. It would be a good example of difficulty in finding a unified standard for the comparable of the CUP method. A subtle factual discrepancy could discern the party assuming the burden of proof and further dominate the result of the case. In this respect, the Subject Decision, together with the Prior Case, is worthwhile in that we can see both the development and the limitation of the Korean transfer pricing taxation regime which is not far from those of OECD member countries.

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