權利金移轉訂價調整之法律爭議

Abstract

在21世紀，無形資產的跨國移轉遽增。無形資產權利金的移轉訂價因此成為國際稅法上的主要議題。本論文係採取由上位至下位之方式論述，輔以OECD、美國、德國等立法或案例作一比較，並針對各部分關聯之問題予以檢討。 第一章介紹本論文之研究動機、問題意議及研究架構。第二章則介紹移轉訂價調整，由於已有不少著作論及，故本文中僅為簡介；此外對於我國移轉訂價法規之合法性乃至合憲性，本文提出粗淺的檢討。 第三章則為權利金移轉訂價調整時觸及的具體問題，即無形資產所有權歸屬認定之難題，目前有法律上所有權及經濟上所有權認定兩種主要方法。美國的法規變化及案例均甚豐富，值得我們借鏡。目前我國尚缺乏為移轉訂價目的之無形資產所有權認定的特別法規，可能解決方式為「實質課稅原則」。 第四章係跨國企業間為避免上述爭議，事先以成本分攤協議作安排。但各國對於成本分攤協議均有嚴格的要求，本文對此部分有所介紹，並以Xilinx案例點出成本分攤協議可能遭遇的挑戰。 第五章則介紹無形資產權利金移轉訂價調整之方法及遭遇之問題，由檢討得知，無形資產權利金之移轉訂價調整充滿著不確定性，故對此正當性提出質疑。可能解決之道為加強程序法規的拘束力及納稅人程序主體地位。第六章為本文結論。

ABSTRACT In the 21st Century, the cross-border flows of intangible property has ballooned. The transfer pricing of royalties, the compensation for the right to utilize intangible property, has therefore become a major inter- national taxation issue.This thesis highlights the current problems from the general, transfer pricing adjustments, to the details, ownership and cost sharing arrangements, and also makes comparative analyses of OECD, US, German and Taiwanese regulations. Chapter 1 introduces the motive, issues and framework of this thesis. Chapter 2 provides a brief introduction and an overview of the legal issues relevant to transfer pricing. According to Art. 15 of the Constitution, the people’s freedom to run a business is protected in the right to work and the right to own property. People are free to determine the manufacture, transaction and disposition of the goods produced by their business. On the other hand, Art. 19 of the Constitution provides that people shall have the duty to pay tax, and Art. 7 of the Constitution states the equity principle. The tax bureau hence has the authority to adjust the prices agreed upon by two enterprises only in the case of tax avoidance or tax evasion. The Income Tax Act Art. 43-1, transfer pricing adjustments, is a special provision for anti- avoidance, we therefore shall bear in mind that transfer pricing adjustments must be initiated only when in transactions which meet the elements of tax avoidance. Moreover, transfer pricing regulations have given rise to several ambiguities. For example, TP Reg. §22 requires affiliated enterprises to submit transfer pricing reports and other documentation. However, the Income Tax Act does not require any particular co-operation obligation from affiliated enterprises. Regarding the burden of proof, the taxpayers’ obligation is limited to proving the facts. In contrast to this, the commentary of TP Reg. §33 states that taxpayers shall provide TP reports in order to prove the prices are at arm’s length. The wording „in order to prove“ is somehow erroneous, as this burden lies with the tax agency. Another question arises as to where in the range adjustments should be made when the prices set by companies are outside the range. TP Reg. §6 II requires that adjustments should be made to the mid-point of the range. However, the mid-point is not the most advantageous for the taxpayers. These adjustments would violate the principle of adequate and proportional interference under Art. 23 of the Constitution. Chapter 3 examines the determination of legal and economic owner- ship of intangible assets. US laws concerning determinative issues have developed in abundance. Lessons might be taken from the changes of the US Treasury Regulations and the cases. So far, Taiwan lacks the regulations dealing with this issue. However, we have the economic substance principle pursuant to the Grand Justices Interpretations. Chapter 3 illustrates the legal basis of the economic substance principle and how it applies to the ownership disputes. Chapter 4 discusses substitution for royalties allocation and cost sharing arrangements. Cost sharing arrangements may avoid disputes over allocation of royalties and may be exempt from withholding tax . Nevertheless, the OECD and tax authorities have strict requirements for taxpayers who would like to use cost sharing arrangements. A table comparing OECD, US and German regulations is provided in order to help readers to get a full picture of these regulations and deal with this thorny issue. In addition, the Xilinx case and the US regulations of 2003 gave rise to criticisms regarding the relationship between stock-based compensation in a cost sharing arrangement and arm’s length. Furthermore, in Taiwan, the cost for a cost sharing arrangement between multinational enterprises is still subject to a withholding tax. The issue needs more attention and regulations that enterprises can follow should be established. Chapter 5 focuses on transfer pricing methods of intangibles which are vital to the transfer pricing adjustments of royalties. Through review of the various regulations, we are aware that the application of the arm’s length principle to transactions involving intangible aessts is full of uncertainty, which may violate the certainty principle as stated in Art. 5 of the Administrative Procedure Act. Possible solutions might be building forced procedure laws and strengthening the taxpayers position in tax procedure. Chapter 6 summarizes and highlights the main criticisms and recommendations made in the previous chapters.