2. The costs of lawsuit shall be borne by the Plaintiff.

A. The Plaintiff is a complete subsidiary of ABsea Bover Ba Ba Badd. (hereinafter “ABH”), which is a Switzerland company that engages in the manufacturing and sales business of electrical equipment, control equipment, etc.

B. From December 1, 2005 to July 2, 2009, the Plaintiff imported goods from AB AB AB, ABOY, etc. (hereinafter “AB-related company”) AC conspiracy (hereinafter “instant goods 1”), opening and closing machines, relay electricity, blocking machines, etc. (hereinafter “instant goods”).

C. Meanwhile, on June 30, 1997, the Plaintiff concluded a contract for the use of ABZ and trademark rights (hereinafter “the former contract”) with the ABH, and paid 1.46% of the total amount of profit after depreciation + labor cost 1.46% as trademark fee. On October 8, 2007, the Plaintiff concluded a trademark right use contract with the ABH to modify the contents of the instant contract (hereinafter “the instant new contract”) and paid 1% of the purchase amount from the AB related company as trademark fee (hereinafter “the instant trademark right fee”).

D. In 205, 2006, and 2008, the Plaintiff filed a revised dutiable value return by adding the trademark right fee of this case to the dutiable value of the instant product No. 1 imported in 2008.

E. The Defendant: (a) determined that the customs value of the instant goods and the instant goods imported in 2007 and 2009 from 2005 to 2009 should be added to the instant trademark right fee; and (b) issued a disposition on November 17, 2010, imposing the Plaintiff KRW 36,86,040, totaling KRW 132,072,770, value-added tax of KRW 178,298,220, and additional tax of KRW 56,495,05,050 (hereinafter “instant disposition”). < Amended by Presidential Decree No. 22426, Nov. 17, 2010>

F. On February 1, 201, the Plaintiff appealed and filed a petition for a trial with the Tax Tribunal, but the said petition was dismissed on May 14, 2012.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 4 (including each number, hereinafter the same shall apply), Eul evidence 7 to 11, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The trademark right fee of this case is not the price for the right to import each of the goods of this case, but the trademark is attached to the goods manufactured by the Plaintiff, and the trademark is paid for the use of the trademark for business activities or installation services. In addition, the trademark right fee of this case is calculated as 1% of the purchase amount from the Plaintiff - the sales amount of “1.46% or 1.6% of the operating profit after depreciation + personnel expenses” - the sales amount of the Plaintiff - the sales amount of the goods of this case from the AB related companies. As the import amount of each of the goods of this case increases

2) The trademark right fee of this case is paid to ABH, not by the seller of each of the goods of this case, but by the Plaintiff and the Plaintiff and the AB-related company agreed to pay the trademark right fee of this case to ABH. Thus, the trademark right fee of this case cannot be deemed to have been paid as the terms and conditions of each of the goods of this case.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Facts of recognition

1) On June 30, 1997, the Plaintiff entered into the instant Gu Agreement with ABH, and the main contents thereof are as follows.

Article 1.1: ABZ, contained in the text, grants the Plaintiff the right to use the trademark to indicate all or part of the products and services produced, supplied, and sold by the Plaintiff. 1.2 ABZ further grants the right to use the trademark to explain or use the products and services of the Plaintiff and the Plaintiff in the goods. This includes technical specifications, plans, notes, notes, notes, advertisements, forms, packaging, etc. to the extent that the Plaintiff’s right to use the trademark is limited to the extent that it is conferred by this Agreement to ensure that the Plaintiff is not subject to the requirement of certification or to maintain the quality of the trademark at the disposal of the trademark at the rate of 7 per cent by a separate contract between ABH and the Plaintiff. This does not affect the Plaintiff’s right to use the trademark at the rate of 1 per cent of the cost indicated below, 1.5 per cent of the cost of the goods and services to be purchased at the rate of 7 per cent of the cost of the goods and services to be purchased at the rate of 5 per cent of the quality of the trademark.

2) On October 8, 2007, the Plaintiff entered into the instant new contract with ABZ, and the main contents are as follows.

1.1. In this definition agreement contained in the text, the term “trademarks” means the third party designated by the owner of the trademark for the particular purpose or activity of the affiliate company ABH or AB group under this Agreement. 4.1. The trademark must be attached to all products manufactured and sold by the Plaintiff under this Agreement. The Plaintiff must strictly comply with the owner’s instructions in using the trademark, and shall obtain prior approval from the owner of the trademark in writing. 4.2 The trademark must be attached at a place visible to the panel of the products, and shall be clearly separated from other labels, signs, and trademarks. The Plaintiff shall have the right to use the trademark at its 5. The Plaintiff’s request from the owner of the trademark for the alteration of its sales and/or distribution of the products, excluding its affiliate companies. 8.1. Quality control and approval procedures shall be 8.2. The Plaintiff shall be given notice in writing of the change in its sales and/or distribution terms of the products attached to the Plaintiff, and the Plaintiff shall be given to the Plaintiff, in accordance with its terms and conditions of sale and sale.

3) In the case of the instant product No. 1, while the Plaintiff sold the product as it is (hereinafter “sales of the product”), and in the case of the instant product No. 2, the Plaintiff produced and sold the finished product using the aforementioned product and parts raised domestically or overseas (hereinafter “sales of the product”).

In order to manufacture the final finished product contained in the main text, the domestic rate of parts procured from a third party overseas for the procurement of the parts procured from a third party overseas to a domestic third party parts for the supply of the parts for the protection of power distribution team electric measuring instruments, Bus Busbar 209 and at least 35% after the date of 209, the contact location for the high-tension and high-tension electric shocking machine, other string locations, and other strings at least 9% of the electric steel board 99% of all kinds of cut smoke Reinus Buss, Block Exx Clamp, Filil LV system electronic disposal digital iron plates, approximately 50% of the protective electric metal labelling system MNS (low-tension distribution team), low-tension changeers, changeers for power distribution system, changeers for power control equipment, and string electric power system for the prevention of power generation location of studs during transition machines, outside 30% of the protective electric wave system.

4) Each of the instant goods imported by the Plaintiff is subject to a “AB trademark” attached to each of the instant goods, and a “AB trademark” is also attached to the finished products produced by the Plaintiff using the instant goods and parts raised domestically or overseas.

[Reasons for Recognition] Unsatisfy, Gap evidence 2, 3, Eul evidence 10 and 11, the purport of the whole pleadings

D. Determination

1) Determination on the first argument

A) Article 19(2) of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 22086, Mar. 26, 2010; hereinafter “former Enforcement Decree of the Customs Act”) provides that “The royalty to be added to the price actually paid or payable by a buyer to the relevant goods under Article 30(1) of the Act shall be the amount related to the relevant goods and paid directly or indirectly by a buyer under the terms and conditions of transaction of the relevant goods” and Article 30(3) of the same Act provides that “Where the royalty is paid for the trademark right, the royalty shall be deemed to be related to the relevant goods if the imported goods are attached with a trademark or a trademark is attached after a minor processing, such as dilution, mixture, classification, simple assembly, packing, etc., is added.”

As seen above, each of the goods of this case imported by the Plaintiff is attached with “AB trademark”, and even the finished products produced by using the goods of this case and parts raised domestically or overseas are attached with “AB trademark”, and the goods of this case, including “aB trademark” imported by the Plaintiff from a company related to AB, and the goods of this case fall under the core parts that affect the quality of the goods produced by the Plaintiff, such as “electric wire, wire board, and drum,” and “the location of the goods” raised by the Plaintiff from domestic or foreign countries, are merely a simple part that can change the purchasing place of the parts at any time. Accordingly, the trademark rights of this case are related to each of the goods of this case.

B) The Plaintiff asserts to the effect that the trademark right fee of this case is not related to each of the goods of this case, since the Plaintiff’s sales amount of “1.46% or 1% of the Plaintiff’s sales amount of “1.46% or” after depreciation + the purchase amount from the AB related companies.

However, according to the Plaintiff’s profit and loss statement, the Plaintiff’s sales amount consist of “sale of goods,” “domestic sales of goods,” “export of goods,” “export of goods,” and “export and import commission,” and the process of calculating the trademark right fee for the portion arising from sales of the goods, the trademark right fee of this case would be 1.46% or 2% of the Plaintiff’s sales of the goods. The Plaintiff’s added value (b-a) added value (b-a) created by the Plaintiff is due to sales of the goods of this case. However, according to the Plaintiff’s profit and loss statement, the Plaintiff’s sales amount constituted “sales of goods,” “export of the goods,” and “export of the goods,” and the trademark right fee of this case is calculated for the portion arising from sales of the goods of this case. The trademark right fee of this case would not be related to the goods of this case.

Then, examining the process of calculating the trademark fee for the portion arising from the sale of the product of this case, if the plaintiff produced finished products using the goods of this case imported from AB related company 2 and parts raised from AB related company 2 and then sold them to B in Korea or in foreign countries, the trademark fee of this case also constitutes 1.46% or 1% of the trademark fee of this case. As seen above, since the goods of this case fall under the core part that affects the quality of the product produced by the plaintiff, the added value (b-a) cost created by the plaintiff is mainly caused by the sale of the goods of this case. In addition, pursuant to Article 19(6) of the former Enforcement Decree of the Customs Act and Article 3-4(2) proviso of the former Determination of the Dutiable Value of Imported Goods Act, since the trademark fee for the goods of this case was calculated by multiplying the trademark price for the goods of this case produced by the plaintiff 2 by the trademark fee for the sale of the goods of this case, the trademark fee for the goods of this case cannot be viewed as having no relation to the customs price for the goods of this case.

C) Therefore, it is reasonable to deem that the trademark right fee of this case is related to each of the goods of this case, and the Plaintiff’s assertion on this part is without merit.

2) Determination on the second argument

A) Article 19(2) of the former Enforcement Decree of the Customs Act provides that “The royalty to be added to the price actually paid or payable by a buyer for the relevant goods pursuant to Article 30(1) of the Act shall be the amount paid directly or indirectly by a buyer according to the terms and conditions of transaction for the relevant goods” and Article 19(5) of the former Enforcement Decree of the Customs Act provides that “in applying the provisions of Article 30(2), a buyer pays a royalty to a seller to purchase imported goods in accordance with an agreement between the buyer and the seller,” and “the buyer pays a royalty to a person other than the seller to purchase imported goods in accordance with the agreement between the buyer and the seller” and “the buyer pays the royalty to use the patent right, etc. to a seller after obtaining permission for the use of patent, etc. from a person other than the seller and pays the royalty to a person other than the seller” shall be deemed to be the terms and conditions of transaction for the relevant goods.

Comprehensively taking account of the above provisions, Article 19(5) of the former Enforcement Decree of the Customs Act provides an example of the typical cases in which “the transaction terms” are recognized, and the transaction terms are deemed legal fiction in cases falling under the requirements provided in each subparagraph of Article 19(5) of the former Enforcement Decree of the Customs Act. However, it cannot be readily concluded that the transaction terms are not recognized even if it does not meet the above requirements.

B) The Plaintiff asserts to the effect that the trademark right fee of this case is not paid to ABH, not to the seller of each of the goods of this case, but to ABH. Since the Plaintiff and AB related parties agree to pay the trademark right fee of this case to ABH, the trademark right fee of this case cannot be deemed to have been paid as the terms and conditions of each of the goods of this case.

On the other hand, in manufacturing and selling goods bearing the trademark at issue to a buyer of imported goods, it is reasonable to deem that the trademark right holder has to observe certain quality standards and specifications in compliance with the manufacturing and sale of the goods bearing the trademark at issue, and in cases where a buyer fails to comply with such quality standards and specifications, it is possible to prohibit the sale and sale of the goods bearing the trademark at issue, the buyer has no choice to purchase the goods at issue, and thus, the payment of trademark right fees is a condition for the transaction of the purchase of imported goods (see Supreme Court Decision 91Nu7958 delivered on April 27, 1993). In full view of the facts acknowledged above and the following circumstances revealed together with the purport of the entire argument, it is reasonable to deem that the trademark right fee at issue was paid as the transaction terms of each goods at issue to the Plaintiff. Accordingly, the Plaintiff’s assertion on this part is without merit.

(1) The “AB-related company that sold each of the instant goods to the Plaintiff” and the Plaintiff, and the “ABH” that concluded each of the instant contracts with the Plaintiff appears to have a special relationship.

(2) According to the new contract 9.1 of this case, the Plaintiff shall pay trademark rights fees to the trademark right holder pursuant to the list 5. According to the new contract 1.1 of this case, the term "ABH or AB group company" means "a third party designated by the trademark right holder for the special purpose or activity of the trademark right holder under the new contract of this case."

(3) In light of the fact that the witness Cho Jae-in stated in this court that “the main parts imported from AB related companies” are “the parts to be inevitably used in accordance with the technical data introduced from AB Group,” the Plaintiff seems to have no choice but to purchase the instant 2 goods, which are the core parts in manufacturing and selling the products, in order to comply with the technical instructions provided by AB related companies according to the technical contract, etc. entered into with AB related companies.

(4) The old contract 4.2 of this case provides that "where another trademark is used subordinate to the AB trademark or the ABH does not approve the use of another trademark, the Plaintiff may not use another trademark in combination with "AB trademark" or "AB trademark". The new contract 4.1 of this case provides that all products manufactured and sold by the Plaintiff according to the contract shall be attached with "AB trademark". In light of the fact that the Plaintiff is obliged to attach AB trademark in order to sell products and products domestically or abroad.

(5) Under the former contract 5.1 and 5.2, “ABH” can verify whether the quality of the product attached with the AB trademark conforms to the ABH’s policies, and the Plaintiff is responsible for maintaining reputation and reputation on the AB trademark. “The 8.1 of the new contract of this case may notify the Plaintiff of the quality standards and specifications to be observed in manufacturing and selling the product attached with the AB trademark, and the Plaintiff must strictly comply with such quality standards and specifications. “The 8.6 of the new contract of this case” shall suspend the distribution of the product attached with the AB trademark at the request of the trademark owner and the authorized affiliate, and in light of the fact that each of the products attached with the trademark owner and the authorized affiliate, ABB trademark cannot commence distribution of the product attached with the AB trademark until the Plaintiff consents in writing, and thus, ABBB’s purchase and sale of the product can not be required by the Plaintiff to comply with the AB’s respective quality standards and quantity of the products attached to the AB.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Ba-hee (Presiding Judge)

Note 1) The first 1.2% was changed later to 1.46%.

2) The trademark right fee of this case is calculated as 1.46% of the “amount of profit after depreciation + personnel expenses” or 1% of the “amount of purchase from the Plaintiff’s sales -B related companies,” so it is difficult to calculate the trademark right fee for the sale of individual goods. However, if it is understood that the trademark right fee of this case is calculated as part of the “value added” created by the Plaintiff as alleged by the Plaintiff, the essence of the trademark right fee for the sale of individual goods is not different even if it is understood in the above way.