국내에 등록되지 않은 특허권의 사용의 대가가 국내원천소득인지 여부[일부패]
Suwon District Court-2017-Gu Partnership-68340 ( October 13, 2019)
Cho-2016-China-1645 ( June 12, 2017)
Whether the consideration for the use of a patent not registered in Korea is domestic source income
In the interpretation of the Korea-U.S. Tax Convention, it cannot be said that the patent right cannot be infringed on outside the country where the patent right is registered, and thus, the use thereof or the payment for the use thereof cannot be made
Article 93 of the Corporate Tax Act
2019-Nu-10081 Revocation of a disposition of refusal to correct corporate tax
AAAAAel LC
o Head of the Oral Tax Office
December 2, 2019
on October 26, 2019
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
1. Purport of claim
The Defendant’s refusal to rectify the amount of KRW 5,911,470,00 for corporate tax of KRW 5,91,470,000 for the Plaintiff on January 22, 2016 shall be revoked.
2. Purport of appeal
The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.
1. Quotation of judgment of the first instance;
The reasons for this court are as follows, and the reasons for the judgment of the court of first instance are the same as those for the judgment of the court of first instance except for the following 2. dismissal or addition.
2. Parts to be removed or added;
The "International Adjustment Act on the Adjustment of International Taxes" is respectively amended by the former Adjustment of International Taxes Act (amended by Act No. 16099, Dec. 31, 2018).
○ Following the 8th judgment of the first instance court, the “decision on the addition of the applicable laws and regulations of the disposition” is added as follows c.
c. Determination on the addition of the underlying statutes of the disposition
The defendant asserts at the trial that the portion of the royalty of this case, which was registered in a foreign country but was not registered in the Republic of Korea, constitutes "other income under Article 93 subparagraph 10 (j) of the former Corporate Tax Act" and thus, it becomes subject to taxation as domestic source income. However, in light of the content of the contract of this case, it is clear that the plaintiff's royalty of this case constitutes royalty income under Article 93 subparagraph 8 of the former Corporate Tax Act since it is the amount that the plaintiff granted the right to use the patent of this case to Samsung Totaler and received as the price for the patent of this case. However, as seen earlier, in the interpretation of the former Adjustment of International Taxes Act and the Korea-U.S. Tax Convention, the royalty of this case, which was registered in a foreign country among the royalty of this case, cannot be deemed as domestic source income. In addition, in order to constitute other income, the royalty of this case constitutes "economic profit that was provided in connection with business in the Republic of Korea, human
○ From 10th to 19th on the same side of the 8th judgment of the first instance court, the term “no data to be confirmed” shall be as follows:
"Scope of revocation"
In a lawsuit seeking revocation of a taxation disposition, whether the pertinent disposition exceeds a reasonable tax amount is determined depending on whether the pertinent tax amount is exceeded. The parties can submit objective tax bases and materials supporting the tax amount until the closing of argument in the fact-finding court. When computing the legitimate tax amount to be imposed lawfully based on such materials, only the portion exceeding the reasonable tax amount should be revoked. However, unless otherwise, the entire taxation disposition should be revoked (see Supreme Court Decision 94Nu13527, Apr. 28, 1995).
The Defendant alleged that the Plaintiff had the burden of proving the legitimate amount of tax in a lawsuit seeking revocation of rectification of the amount of tax paid by oneself as in the instant case, but inasmuch as there is no evidence to calculate the legitimate amount of tax to be imposed legally even in the lawsuit seeking revocation of rectification, the court shall, in principle, revoke the entire amount of the tax assessment in accordance with the aforementioned legal principles, and thus the disadvantage that the Defendant, the disposition agency, is subject to the disposition agency
In this case, the use fee of this case is the remuneration for patent, etc. listed in the separate A and B of the contract of this case, and "the amount equivalent to the legitimate tax base" of the usage fee of this case is not specified in the contract of this case, and there is no data to confirm otherwise, in principle, the entire disposition of this case shall be cancelled."
3. Conclusion
Therefore, the decision of the first instance court is justifiable, and the defendant's appeal is dismissed.