跨國權利金支付的稅捐課徵――從BEPS第5號行動方案檢視「歐洲專利盒制度」與「限制權利金費用認列規定」

A Study on the Taxation of Transnational Royalty Payments: Examining the “European Patent Box System” and the “Restriction of Royalty Fees Recognition Provision” Through the BEPS Action 5

隨著數位經濟的興起，無形資產的跨境授權使用，可以說是當前稅務規劃中最受歡迎的工具之一。由於歐洲許多提供「專利盒」（Patent Box）制度的國家，對於權利金收入提供稅捐優惠，因而吸引許多跨國企業將無形資產移轉至當地。OECD發布的「稅基侵蝕與利潤移轉」（Base Erosion and Profit Shifting，簡稱BEPS）第5號行動方案，建議各國應適用所謂的「關聯性標準」（Nexus-Ansatz），亦即稅捐的課徵應回歸以交易的經濟實質為中心，正是為了對抗此種有害稅務競爭的優惠制度。在OECD的建議下，未來歐盟各國針對智慧財產權收益所享有的稅捐優惠，僅限於一定的比率，以符合「關聯性標準」。我國產業創新條例第12條之1第1項有關「研究發展支出加倍減除」的規定，其實質內涵等同歐洲的「專利盒」制度。在上述「關聯性標準」標準的檢視下，似有重新檢討的必要。

With the rise of the digital economy, the authorized use across the border for intangible assets is currently considered to be one of the most popular tools in tax planning. Since many countries in Europe that provide the “Patent Box” system offer tax concessions for royalty income, many multinational companies have opted to transfer intangible assets to their localities. As such, Action No. 5 of the OECD’s BEPS (Base Erosion and Profit Shifting) recommends that countries should apply the so-called “Nexus Standard” (Nexus-Ansatz), that is, the levy of taxes should return to the economic essence of transaction as its focus, which would combat this preferential system that is harmful to tax competition. Under the recommendation by OECD, tax concessions enjoyed by EU countries in the future with gains from intellectual property rights should be limited to a certain percentage in order to meet the “nexus standards.” With respect to the stipulation of Item 2 of Article 12-1 of our “Industrial Innovation and R&D Regulation,” the proviso states that “The Expenditures of Research and Development is Reduced Two-fold,” an equivalent to the European “patent box” system. In review of the above-mentioned “nexus standard,” it seems necessary to re-examine our current stipulations. In addition, Germany and Austria took the lead in introducing the “restriction of royalty fees recognition” provision in order to prevent multinational corporations from paying royalties through related parties and moving profits overseas. Though above-mentioned regulations are well-intended, their constitutionality is under doubt and considered unjustified when viewed from the perspective of “objective net worth principle.” In view of such a fact, when evaluating if our country is to introduce this regulation in the future, we may perhaps re-adopt the use of the “Reverse Tax Credits” model, so that we can, on the one hand, embrace the prevention of tax evasion effectively while avoiding unnecessary restrictions on unconstitutionality.