법인세 징수 및 부과처분 취소
1. The Defendant’s disposition of collecting corporate tax of KRW 5,397,309,00 against the Plaintiff on December 2, 2013 and additional tax for the business year 2011.
1. Details of the disposition;
A. B (hereinafter referred to as “B”) is a limited liability company established in the United States of America (hereinafter referred to as “U.S.”) on May 21, 2010, and C (hereinafter referred to as “C”) is a general liability company established in the Republic of Ireland on June 21, 2010, and B owns 100% of the shares of D (hereinafter referred to as “D”) located in the Republic of Ireland, a member state of the European Union, and D owns 9.9% of the shares of C.
B. B is a U.S. limited partnership company holding a patent right related to advanced technology such as a mobile phone on September 21, 2010
E. On November 8, 2010, by obtaining the said patent-related authority from F. F., a limited liability company of the United States, entered into a reuse contract with C on the said patent right.
C. On November 3, 2011, the Plaintiff entered into a contract with C for the use of the said patent right (hereinafter “instant contract”), and paid KRW 50,724,000,000 for the patent fee to C on December 2, 201 and November 3, 2012 (hereinafter “instant royalty”). At the time, the Plaintiff did not withhold corporate tax on the instant royalty pursuant to Article 12(1) of the Convention between the Republic of Korea and the Republic of Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Transfer Income (hereinafter “Korea-Japan Tax Convention”).
The Defendant ought to regard the beneficial owner of the instant royalty as a U.S. corporation or an investor residing in the U.S. who owns B or a patent right not C, and to deny the application of Article 12(1) of the Korea-U.S. Tax Convention, and applying Article 98(1) of the former Corporate Tax Act (amended by Act No. 11607, Jan. 1, 2013); and Article 14(1) of the Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (hereinafter “Korea-U.S. Tax Convention”).