Budiobberg Korea Limited Company (Attorneys Jeong Byung-chul et al., Counsel for the defendant-appellant)

Sejong District Court Decision 201Na1146 delivered on August 1, 201

March 27, 2009

Seoul Administrative Court Decision 2005Guhap30068, 41082 decided September 28, 2007

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 imposition of each value-added tax on the Plaintiff on the date of each imposition indicated in the separate sheet of imposition shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows, and this Court’s reasoning is identical to that for the judgment of the court of first instance except for the following parts. Thus, this Court’s reasoning is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts to be dried;

(a) cutting off on the 2nd page No. 14 with 'batter' as 'batter';

(b) Part 2, Section 16, with the “Cymms Engineling Co., Ltd.” as the “Cymms Engine Co., Ltd.” and the “PS Telecom, Inc., Ltd., which is divided from the above companies.”

(c) breeding on the 5th page 17 No. 1-2 with 'No. 1-2';

D. On the 12th page, the term “the last place of the conduct” between the Plaintiff and the NonELP, as “the conclusion between the Plaintiff and the NonELP,” respectively.

(e) at No. 13, on the 20th anniversary of the conclusion of the service contract, the conclusion of the service contract is called "the conclusion of the service contract";

F. The part of "not more than 10 Ra. Judgment" on the 14th page is as follows:

(1) The issue of this case

Article 11(1)4 of the Value-Added Tax Act provides that the zero tax rate shall apply to the supply of goods or services for earning foreign currency as prescribed by the Presidential Decree, and Article 26(1)1 of the former Enforcement Decree of the Value-Added Tax Act provides that the payment shall be paid in Korean currency at a foreign exchange bank. On the other hand, Article 8(1) of the Korea-U.S. Tax Convention provides that a resident of a Contracting State’s industrial or commercial profit shall be exempted from taxes under the other Contracting State unless the resident is engaged in industrial or commercial activities within the other Contracting State through a permanent establishment located in the other Contracting State. Accordingly, whether non-ELP bears a domestic tax liability, such as corporate tax, or other corporate tax, in relation to the studs professional service, and whether the Plaintiff who supplied the instant service to non-EL is subject to the zero tax rate shall be determined by whether both non-EL and a permanent establishment are engaged in domestic business activities.

한편, 한미조세협약 제9조 ⑴항은 ‘고정사업장’을 어느 체약국의 거주자가 산업상 또는 상업상의 활동에 종사하는 사업상의 고정된 장소를 의미한다고 정의하고, ⑵항은 사업상의 고정된 장소에 해당하는 예시로서 ⓐ 지점, ⓑ 사무소, ⓒ 공장, ⓓ 작업장, ⓔ 창고, ⓕ 상점 또는 기타 판매소, ⓖ 광산·채석장 또는 기타 자연자원의 채취장, ⓗ 6개월을 초과하여 존속하는 건축공사 또는 건설 또는 설비공사를 규정하고 있으며, ⑶항은 사업상의 고정된 장소에 해당하지 않는 예시로서 ⓐ 거주자에 속하는 재화 또는 상품의 보관·전시 또는 인도를 위한 시설의 사용, ⓑ 저장·전시 또는 인도목적상 거주자에 속하는 재화 또는 상품의 재고보유, ⓒ 타인에 의한 가공목적상 거주자에 속하는 재화 또는 상품의 재고보유, ⓓ 거주자를 위한 물품 또는 상품의 구입목적상 또는 정보수집을 위한 사업상의 고정된 장소의 보유, ⓔ 거주자를 위한 광고, 정보의 제공, 과학적 조사 또는 예비적 또는 보조적 성격을 가지는 유사한 활동을 위한 사업상의 고정된 장소의 보유, ⓕ 6개월을 초과하여 존속하지 아니하는 건축공사 또는 건설 또는 설비공사의 보유를 각 규정하고 있는데, 비엘피의 국내 고정사업장 존재 여부를 판단함에 있어서는 이러한 한미조세협약상의 정의 및 예시규정이 우선적으로 적용되어야 할 것이고, 위 각 규정들을 종합하여 볼 때 비엘피의 국내 고정사업장이 존재한다고 하기 위하여는 ① 국내에 비엘피의 사업활동을 수행하기 위하여 사용되는 건물, 시설 또는 장치 등의 ‘고정된 사업장소가 존재’하여야 하고, ② 비엘피가 그 사업장소에 대하여 ‘처분권한 또는 사용권한’을 가지고 있어야 하며, ③ 비엘피의 직원 또는 그 지시를 받는 자에 의하여 그 고정된 사업장소를 통하여 예비적·보조적 활동이 아닌 ‘본질적이고 중요한 사업활동이 수행’될 것 등이 요구된다.

Whether there is a permanent establishment at the location of Dold Equipment and Blstlerg receiver

㈎ 고정된 사업장소 및 이에 대한 처분권한 또는 사용권한

In light of the facts acknowledged earlier, the Plaintiff purchased No.S. equipment and studs from non-EL and third parties in accordance with the service agreement concluded with non-ELP, and installed No.S. offices designated by non-ELP in order to maintain, repair, and manage studs, through the subcontract with the studs, and made it available to the studs in the office of the customers. The Plaintiff received 110% of the cost of service, including the cost of service, paid to the studs from non-ELP to the studs, and 110% of the cost of depreciation of the studs and studs, as well as the cost of the studs and studs of the studs, and the cost of the studs and studs of the studs, and installed the studs and studs to the studs and studs of the Plaintiff’s studs to the studs and studs of the studs.

㈏ 본질적이고 중요한 사업활동의 수행

As seen earlier, nonELP’s business activities are conducted at the three stages of delivery of information provided to customers through the Round equipment and blurg receiver through the process and analysis of information which information collection personnel in all countries around the world collect and forward to the U.S. head office of nonELP, and through the process and analysis process of information input from the nonELP’s head office in the U.S. located in the U.S.......... Of these, the Round equipment does not simply contain a function of processing and modification as a means of simply receiving processed information from the U.S.’s home computers and simply transmitting it to the customers via the intermediate intermediate intermediary, and it does not constitute a key part of the 2010 U.S.’s equipment and its function as an individual computer. However, the main function of which is to receive information from the nonELP’s head office is to ensure that it can be seen as a part of the 2010 U.S.’s equipment and its unique value-added method for receiving information from the 201.

The Defendant asserts that the content of the service offered to non-ELP contains not only the provision of information but also the provision of communication functions using the studioberg network, and that it receives comprehensive fees for the provision of communication services. The Defendant asserts that non-ELP is an essential device for profit-making through such business activities as a permanent establishment. In concluding a contract for non-ELPP provides a studio receiver’s receiver for smooth delivery of the service, and it is difficult to view that the main use of the studio receiver’s receipt of information for the above studioberg’s service is not a dispute between the parties, but also it is difficult to receive information from non-ELP’s main use of the studioberg’s receipt of information for the above studler’s use of the software or studler’s telecommunication equipment, and even if non-ELP provides the studler’s receipt of information for the use of the studio, other than the provision of the studler’s telecommunication equipment to the customers, it is also included in the Plaintiff and the st.

㈐ 따라서, 비록 국내에 설치된 노드 장비 및 블룸버그 수신기가 고정된 사업장소에 해당하고 원고나 시피에스의 직원이 비엘피와의 용역계약에 따라 이를 설치, 유지, 관리업무를 수행함으로써 비엘피가 이에 대한 사실상의 배타적 지배권한 또는 사용권한을 가지고 비엘피의 블룸버그 프로페셔널 서비스와 관련된 사업활동을 수행한 것으로 볼 수 있다고 하더라도, 그 사업활동은 비엘피의 사업활동의 내용 등에 비추어 볼 때 부수적이고 보조적인 활동에 불과하므로, 이로써 한미조세협약에서 규정한 비엘피의 국내 고정사업장이 존재한다고 볼 수는 없다.

• Whether there is a permanent establishment at the place of activity of the business employees of the Hong Kong branch of nonela

The fact that Korean employees in charge of the nonELS Hong Kong branch visit Korea at the customer's office, hotel, etc. to conduct promotional activities such as advertising and publicity of the studs professional service, etc. at the customer's office, hotel, etc., provide information service fees, etc. to potential customers, and provide the Plaintiff's office with education and training on the method of using equipment, etc. at the Plaintiff's office is as seen earlier.

First, it cannot be deemed that non-ELP had the authority to dispose of the customer's office visited by the employees of non-ELP Hong Kong branch, and there is no evidence to deem that non-ELP had actually controlled or used the hotel, etc. that performed promotional activities for a long time to the extent that the place is recognized as permanent establishment in the Republic of Korea of non-ELP. Next, the Plaintiff's office where non-ELP branch employees provided education and training to customers on the method of using equipment, etc. cannot be deemed as a domestic permanent establishment in the Republic of Korea of non-ELP branch. In light of the above, the Plaintiff's office where non-ELP branch employees provided education and training to customers on the method of using equipment, etc., the Plaintiff's relationship with the non-ELP and the Plaintiff's domestic stay period, and the non-ELP branch employees other than the Plaintiff's office, it can be deemed that the non-ELP controlled or used at least periodically and repeatedly within the scope of the office, but it can not be deemed as an essential substance of the Plaintiff's business activity.

Applicant Whether a permanent establishment exists by combining Round equipment, Blublerg receiver, place of education, etc.

Article 5(f) of the OECD Model Convention provides that a permanent establishment may be established in cases where the overall activities of a workplace fixed by combining ancillary and auxiliary activities deviates from the scope of preliminary or auxiliary nature. However, Article 9(1) of the Korea-U.S. Tax Convention provides that “The term “permanent establishment shall not include a fixed place of business that is used only for one or more of the following purposes.” The provisions of the Korea-U.S. Tax Convention are interpreted to the effect that even if combining various preparatory and auxiliary activities, it does not still constitute a permanent establishment. Thus, in determining whether the establishment of a permanent establishment of a non-U.S.P., as seen earlier, the determination of whether a permanent establishment is constituted can not be made by combining the aforementioned activities, so long as it regards the delivery of information carried out through the No.S. equipment of this case and the reception of information and the educational activities carried out at the Plaintiff’s office as a preparatory and auxiliary nature respectively.

In addition, in light of the aforementioned various circumstances, even if the transmission of information conducted through the Round equipment and Blstberg receiver, and sales promotion and educational activities conducted by employees of nonEL Hong Kong branch offices in the Plaintiff’s office, etc., such combination cannot be deemed as an essential and important business activity of nonELP business. In this regard, it cannot be deemed that a permanent establishment in the Republic of Korea of nonELP exists.

(v) Furthermore, it is insufficient to recognize that the Plaintiff provided the above services, other than the instant services, to non-ELP’s domestic customers, and sales promotion services, etc. in Korea, as to whether non-ELP performed essential and important projects in a domestic fixed business place, by providing the Plaintiff with the records of health class Nos. 5 through 6, 9, 11, 12, 14, 20-1, 20-1, 20, 21, 21, and 21, and there is no other evidence to acknowledge otherwise.

⑹ 결국, 비엘피에게 한미조세협약 제8조 (1)항에 의한 국내 고정사업장이 있다고 볼 수 없으므로, 비엘피의 국내 고정사업장이 존재함을 전제로 원고가 비엘피의 국내사업장에 이 사건 용역을 제공한 것으로 보아, 원고가 수취한 그 대가에 대하여 영세율 적용을 배제한 이 사건 각 부과처분은 더 나아가 살펴볼 필요 없이 위법하다.“

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Cho Jong-chul (Presiding Judge)