Cho High Court Decision 201Do1793, 27 June 2012

Whether it is possible to grant tax credits when an enterprise entrusted with entrusted research and development services has not been held;

In the case of entrusted research and development, it is interpreted that it constitutes tax credit expenses even if the entrusted company does not hold a dedicated department, even if the entrusted company does not hold the dedicated department, it is against the tax equity in the case of self-research and development, and it is not eligible for tax credit if the re-entrusted company does not hold

2012Guhap29509 Revocation of Disposition of Corporate Tax Imposition

2012Guhap31892 (Joint) revocation of disposition of imposing corporate tax

2012Guhap32369(combined) revocation of disposition of imposing corporate tax

2012Guhap32536 (Joint) revocation of disposition of imposing corporate tax

2012Guhap38428 (Joint) revocation of disposition of imposing corporate tax

2012Guhap40834 (Joint) revocation of disposition of imposing corporate tax

1.AA Co. 2.B.

3.CCC 4.DD Co., Ltd.

5.E Bank 6.F

1.Yth of the Tax Office 2.Yth of the Tax Office; and

May 3, 2013

July 5, 2013

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The head of the tax office's disposition of rejection on February 11, 201 against Plaintiff AA 2 (hereinafter referred to as "Plaintiff A") shall be revoked on April 1, 2007 to March 31, 2008, and the head of the tax office's disposition of rejection against Plaintiff B. 1, 201 (hereinafter referred to as "Plaintiff B. 1, 201") for each of 0.3 business years from April 1, 2009 to March 31, 2010, and the head of the tax office's disposition of rejection against Plaintiff B. 3, 201 (hereinafter referred to as "Plaintiff B. 1, 201") for each of 0.3 business years from March 11, 201, and the head of the tax office's disposition of rejection against Plaintiff C. 2, 201, for each of 2, 30. O.D. 2, 2008.

1. Details of the disposition;

A. Plaintiff AA (2012Guhap29509)

1) The Plaintiff AA, a domestic corporation operating a securities business, filed a claim for correction to refund the total amount of the corporate tax from April 1, 2006 to March 31, 2007, and from March 31, 2007 to March 31, 2008, on the basis of the tax credit provision on research and human resources development expenses under Article 10 of the Restriction of Special Taxation Act, and the head of the Defendant Tax Office decided to refund the amount equivalent to the above corporate tax on February 20, 209.

2) On December 1, 2007, Plaintiff AA entered into a contract with GGG Co., Ltd. (hereinafter referred to as “GGG”) that owns a department exclusively in charge of technology development to entrust “development of the next generation IT system” service, and according to the said contract, Plaintiff A paid OO costs to GG as research and development expenses.

3) Under Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008), Plaintiff AA applied the tax credit for research and development expenses from April 1, 2008 to March 31, 2009, and deducted it from the tax amount to be paid at the time of filing a corporate tax return for the business year from April 1, 2009 to March 31, 2010.

4) The director of the Seoul Regional Tax Office ordered the company entrusted with the research and development service to rectify the tax credit for the portion re-entrusted to part of the business when the business was regularly audited by the Defendant’s director of the Seoul Regional Tax Office. Accordingly, on February 11, 2011, the head of the Seoul Regional Tax Office corrected and notified the Plaintiff AA of the corporate tax office’s corporate tax OOO on April 1, 2007 or March 31, 2008 and the corporate tax OOOOO on April 1, 2009 or March 31, 2010.

5) On May 11, 201, Plaintiff AA appealed and filed an appeal with the Tax Tribunal on May 11, 201. On June 8, 201, the Tax Tribunal rendered a decision that “The cost re-entrusted to a business entity having a research institute or a department in charge of research and development expenses out of the research and development expenses that is re-entrusted by a third party shall be subject to the tax credit for research and development expenses.” The Defendant’s Head of the Tax Tribunal determined that the research and development service cost OOO(supply value) performed by a re-entrusted business entity holding a research institute or a department in charge of research and development expenses from the OO(supply value) of the re-entrusted business that is excluded from the amount subject to the tax credit for the pertinent business year, and that the remainder is dismissed.”

6) Accordingly, the head of the defendant's headquarters at the same time notified the plaintiff AA on June 19, 2012, and the OOOOOOOOOOOOOOOOOOOOOO(additional additional dues on refund of corporate tax) at the corporate tax on April 1, 2009 through March 31, 208, and the OOOOOOOOOO(additional additional dues on refund of tax amount) at the corporate tax on March 31, 201 (hereinafter referred to as the above reduced OOOOOO(additional30,000,000,000,000) at the corporate tax on April 11, 2007 through March 31, 2008 (hereinafter referred to as "OOO-30,000,0000,0000 won and 301,000,000

B. Plaintiff BB (2012Guhap31892)

1) On April 1, 2007, Plaintiff BB, a domestic corporation operating an insurance business, entered into a contract with multiple entrusted companies, including HH, holding a department in exclusive charge from March 31, 2008 until the business year from March 31, 2008, to entrust the establishment of a new insurance system and a retirement pension independent system.

2) Plaintiff BB paid the total amount of OO(OO on April 1, 2007 through March 31, 2008: OOO, from April 1, 2008 to March 31, 2009: OOO: from April 31, 2008 to March 31, 2009) to the trustee under the above contract, and applied the Restriction of Special Taxation Act [the former Restriction of Special Taxation Act (amended by Act No. 8827, Dec. 31, 2007) (amended by Act No. 8827, Dec. 31, 2007); and the total amount of tax paid from O to 300,000,000,000 to 30,000,000,000,000 won (amended by Act No. 8827, Dec. 26, 2008 to 30,000).

3) On March 11, 201, Defendant YY director notified Plaintiff BB of the cost of re-entrustment to a third party without performing research and development expenses (OOOOO won from April 1, 2007 to March 31, 2008, and OOOO won from April 1, 2008 to March 31, 2009, respectively, on March 11, 201, by deeming that research and development expenses are not subject to tax credit.

4) On June 2, 2011, Plaintiff BB appealed against it, and filed an appeal with the Tax Tribunal on September 21, 201. On June 25, 2012, the Tax Tribunal rendered a decision that “The costs re-entrusted to a business entity having a research institute or a department in charge of research and development, out of the research and development costs that the trustee company re-entrusted to a third party, should be recognized as eligible for the tax credit” by DefendantY Director of the Tax Tribunal, “The costs re-entrusted to a business entity having a department in charge of research and development, from the amount excluding the amount subject to the tax credit for research and development costs, which Plaintiff BB performed by a business entity having a research institute or a department in charge of development of the computer system, shall be verified, subject to the tax credit for the pertinent

5) Accordingly, on August 2, 2012, Defendant YY director: (a) notified Plaintiff BB of the reduction and correction of KRW OOO(s) from the corporate tax on April 1, 2007 to March 31, 2008; (b) corporate tax on March 31, 2009; and (c) notification of the reduction and correction of KRW OO(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)

C. Plaintiff DD (2012Guhap32369)

1) On May 30, 2008, Plaintiff CCC (DD Co., Ltd., a domestic corporation operating an insurance business, entered into a contract with the Co., Ltd., III (hereinafter referred to as “III”) holding a dedicated department, entrusting the establishment of a general insurance system, etc., and paid OCO in III as research and development costs.

2) On April 1, 2008 through March 31, 2009, Plaintiff CCC did not apply the tax credit for research and development expenses under Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008), and omitted the application for the tax credit for the said research and development expenses at the time of filing the corporate tax return for the business year from April 1, 2009 to March 31, 2010.

3) On October 26, 2010, the Plaintiff CCC requested the head of the Defendant Z District Tax Office to correct the amount of corporate tax to be refunded by adding the amount equivalent to the above corporate tax to the deductible tax reduction and exemption tax amount for the business year from April 1, 2009 to March 31, 2010, by applying the tax credit for research and development expenses.

4) On December 29, 2010, the head of the defendant Z tax office rejected the claim for correction against the plaintiff CCC, and the OOOOOO members of the above research and development costs constitute the costs re-entrusted to a third party and not subject to the tax credit. In addition, the corporate tax reduction and exemption amount is added to the deductible tax amount, and the other OOO members (=OOO members - OOOO members) are also denied the claim for correction.

5) On March 25, 201, Plaintiff CCC appealed and filed an appeal with the Tax Tribunal on October 5, 201 through an objection on March 25, 201. On June 28, 2012, the Tax Tribunal rendered a decision to reject the refund of the corporate tax on December 29, 2010 by the head of Defendant CCC on the ground that “the cost re-entrusted to a company having a research institute or a department in charge of research and development, out of the research and development expenses that was re-entrusted by the entrusted company to a third party, is reasonable to be recognized as eligible for the tax credit,” and the remainder of the request for a trial was dismissed.

6) Accordingly, on July 11, 2012, the head of the defendant Z tax office recognized the tax credit for the re-entrusted research and development expenses to the company with the plaintiff CCC and the department in exclusive charge, and reduced, corrected, and refunded the corporate tax OOO(s) for the business year from April 1, 2009 to March 31, 2010 (hereinafter referred to as the 'OOOO'(s) in the disposition of refusal of correction as of December 29, 2010, which remains without such refund(s).

D. Plaintiff DD (2012Guhap32536)

1) Plaintiff DD, a domestic corporation operating insurance business, entered into a contract with the JJ Co., Ltd. (hereinafter referred to as “JJ”) holding exclusively responsible department from April 1, 2007 to March 31, 2008 to March 31, 2009 to entrust research and development of electronic computer system, such as extension of merities and network improvement.

2) According to the above contract, Plaintiff DD paid the total amount of OO or research and development expenses to JJ (from April 1, 2007 to March 31, 2008: OO or OO or from April 1, 2008 to March 31, 2009: OO or OO or research and development expenses under the former Restriction of Special Taxation Act (amended by Act No. 8827, Dec. 31, 2007; hereinafter referred to as the “O or research and development expenses”) and the special tax credit for 30 O or 208 O or 208 O or 208 O or 208 O or 208 O or 207.30,000,000 or 30,000,000 or more (amended by Act No. 8827, Dec. 31, 2007).

3) On December 1, 201, Defendant YY director notified Plaintiff DD of the cost of re-entrusted to a third party without the JJ’s direct performance of the said research and development project (OOOOO won from April 1, 2007 to March 31, 2008, and OOOO won from April 1, 2008 to March 31, 2009, respectively) by deeming that the said research and development project is not eligible for tax credit.

4) On January 5, 2012, Plaintiff DDR appealed and filed an appeal with the Tax Tribunal on January 5, 2012. On June 28, 2012, the Tax Tribunal rendered a decision that “The amount re-entrusted to an enterprise holding a department in exclusive charge of research and development expenses that the JJ re-entrusted to a third party on the ground that the expenses re-entrusted to a research institution or an enterprise having a department in exclusive charge of research and development expenses from among the research and development expenses that the entrusted company re-entrusted to a third party should be recognized as eligible for tax credit shall be subject to tax credit for research and human resources development expenses, and the amount corresponding thereto shall be re-entrusted and corrected according to the result

5) Accordingly, on August 10, 2012, Defendant YY director of the tax office, after re-audited Plaintiff DD on August 10, 2012, refunded OOOO members of the corporate tax for the business year from April 1, 2007 to March 31, 2008, and OOO members of the corporate tax for the business year from April 1, 2008 to March 31, 209 (this subordinate was so refunded to OO members of the corporate tax for the business year from April 1, 201 to March 31, 208 (OO members of the corporate tax for the business year from April 1, 2007 to 31, 208 (OO members of the corporate tax for the business year from April 1 to 31, 2008) (i.e., OO members of the corporate tax for the business year from April 1 to 31, 2008).

E. Plaintiff EE Bank (2012Guhap38428)

1) The Plaintiff EE Bank, a domestic corporation carrying on financial business, concluded a contract with a large number of entrusted companies, such as GG, with a department in charge in the year 2005, 2007, and 2008, and paid research and development expenses to the above entrusted companies.

2) The Plaintiff EE Bank reported and paid the above research and development expenses [the former Restriction of Special Taxation Act (amended by Act No. 7839 of Dec. 31, 2005), and the former Restriction of Special Taxation (amended by Act No. 118827 of Dec. 31, 2007) for the business year 2007, and for the business year 2008, research and development expenses under Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008), respectively, by applying the tax credit under Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008).

3) The director of the Seoul Regional Tax Office decided that the part of the research and development service entrusted by the Plaintiff EE Bank was not eligible for tax credit, and that the part of the research and development service entrusted by the Plaintiff EE Bank was not eligible for tax credit.

4) Accordingly, on December 10, 2010, Defendant YY director of the tax office corrected and notified the Plaintiff EE bank of the amount of corporate tax for the business year 2005, and the portion of the research and development expenses for the corporate tax for the business year 2007, OOO(OOO). In addition, Defendant YYY director of the tax office corrected that the amount of OOO of the corporate tax for the business year 2008 excluded from the tax credit for research and development expenses was deducted from the amount of tax to be refunded to Plaintiff EE bank due to any other reasons for correction. On March 9, 2011, Plaintiff EE bank requested the refund by adding the above OOOOO to the deductible tax credit amount, but rejected on March 25, 2011.

5) On April 19, 201, Plaintiff EE Bank appealed to the part of the disposition of imposition of corporate tax for the year 2005, and the part of the disposition of imposition of the OOO0 in the year 2007 corporate tax for the year 2007, and filed an appeal with the Tax Tribunal on March 9, 201, against the disposition of rejection of the above disposition of correction, and filed an appeal with each of the Tax Tribunal on April 19, 201. The Tax Tribunal decided on June 27, 2012 on the ground that the expenses re-entrusted to a company with a research institute or a department in charge of research and development from among the research and development expenses paid by the entrusted company to a third party is reasonable to recognize the expenses subject to the deduction of research and development expenses.

6) Accordingly, Defendant YY director of the tax office recognized the tax credit for research and development expenses re-entrusted to an enterprise with a dedicated department, and notified the reduction and correction of the corporate tax for the business year 2007, and the OOOO(additional additional dues for refund) and the OOO(additional dues for refund) (hereinafter “OOO(additional dues”) of the disposition of imposition of corporate tax for the business year 2005, and the remaining OOOO(25th of December 10, 2010, the part of the disposition of imposition of corporate tax for the business year 2007, which is the disposition of rejection of the OOO(=the OOOO(2) and the part of the disposition of rejection of the OOO(25th of December 10, 2010).

F. Plaintiff F (2012Guhap40834)

1) Plaintiff F, a domestic corporation engaged in financial business, and agricultural and livestock products distribution business, entered into a contract with multiple consignment companies, including GG, holding a dedicated department from January 2008 to December 2009, to entrust the establishment of an electronic computer system, etc.

2) Plaintiff F paid research and development expenses to the above trustee, and imposed and paid corporate tax by deducting the amount of tax payable from the amount of tax payable by the former Restriction of Special Taxation Act (amended by Act No. 9272, Dec. 26, 2008; Act No. 9272, Dec. 26, 2008; Act No. 9921, Jan. 1, 2010) in accordance with Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010).

3) On December 5, 2011, Defendant YY director of the tax office corrected and notified OOOOO(OOO(208 business year, OOO, 2009 business year, OOO) of the research and development expenses incurred by re-entrusted a third party, not directly performed by the above entrusted company among the above research and development expenses OOOO(208 business year, and 2009 business year, OOF) of the corporate tax for the business year 2008 and corporate tax for the business year 2009, respectively.

4) On March 5, 2012, Plaintiff F had an objection and filed an appeal with the Tax Tribunal on March 5, 2012. On September 5, 2012, the Tax Tribunal rendered a decision that “The cost re-entrusted to a company located in a research machine or a department in charge of research and development from among the research and development expenses that the entrusted company re-entrusted to a third party shall be subject to the tax credit” to confirm the research and development service cost performed by the re-entrusted company (limited to the case of holding a research institute or a department in charge) and correct the tax amount for the pertinent business year, and dismiss the request for a trial on the payment of money.”

5) Accordingly, on October 5, 2012, Defendant YY director of the tax office notified Plaintiff F of the reduction and correction of the KRW OOO of the corporate tax for the business year 2008, and the KRW OOO of the corporate tax refund (additional tax refund for the business year 2009 was completely revoked, and the remaining amount after the reduction was made; hereinafter referred to as “OOO”) of the corporate tax for the business year 2008 (i.e., the disposition of imposition of KRW 6 of the corporate tax for the business year 2008 (i.e., the disposition of imposition of KRW OO - OOO 6), and (ii) the disposition of each disposition referred to in subparagraphs 1 through 6 was referred to as “each of the instant dispositions”).

[Grounds for Recognition] The whole purport of the arguments and arguments by Gap, Gap, Eul, Eul, Eul, Eul, Eul, Eul, Eul, Eul, Eul, Eul, Eul, Eul, Eul, Eul, Eul, Eul, and Eul, and Eul, and Eul, Eul, Eul, Eul, Eul, and Eul, and Eul, Eul, Eul, and Eul, and Eul, and Eul, and Eul, and Eul, and Eul, respectively.

2. Whether each of the dispositions of this case is legitimate

A. The parties' assertion

1) The plaintiffs' assertion

① Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 921, Jan. 1, 2010); Article 10 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010) [Separate Table 6] provides that "expenses for the entrustment of technology development services, etc. to a research institute or a dedicated department of research and development expenses" among research and development expenses shall be subject to tax credit; it is not allowed to reduce tax benefits without reasonable grounds; ② Article 10 of the Restriction of Special Taxation Act, which provides for tax credit for research and development expenses, provides that the purpose of promoting research and development is to grant more tax credit to taxpayers; ③ The method of receiving technology development services to an institution having a dedicated department, which is a kind of entrustment, may be determined by itself to achieve the purpose of the delegation of technology development; ④ It is not possible for a trustee to request another dedicated department to provide the final tax credit of research and development expenses depending on human resources and technology, and it is unlawful.

2) The defendants' assertion

A) Claim by Defendant YY director, and Z superintendent of the tax office

BB and CCC did not find whether the costs for the entrustment of research and development services claimed by them were used in research and development activities.

B) The defendants' assertion

Expenses for re-entrusted research and development are not eligible for tax credit. Even if the expenses for re-entrusted research and development are eligible for tax credit, the expenses paid to the re-entrusted business that does not hold the exclusive department shall not be eligible for tax credit.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether research and development services are applicable

Article 9 (5) of the Restriction of Special Taxation Act provides that "the activities to achieve scientific or technical progress, and to develop a new service and service delivery system", and Article 9 (5) of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 201) provides that "the activities to achieve scientific or technical development" in relation to research and development. As seen earlier, the services entrusted by plaintiffs BB and CCC are activities to achieve technical development by establishing a systematic and comprehensive system to enhance core and service competitiveness, and to achieve optimal and efficient operation of information and communications technology, and the National Tax Service does not provide that "the research and development services entrusted by a domestic corporation with a dedicated department for research and development" are "the research and development services entrusted by a domestic corporation," and that "the former YB Tax Office does not provide that "the former YB" and "the latter YB Tax Office does not provide that "the former YB tax office should be recognized," and that "the latter YB tax office should not provide the service at issue."

2) Whether a research and development service is subject to tax credit if it is re-entrusted

In full view of the following circumstances, it is reasonable to view that the expenses incurred in re-entrustment of research and development services are not subject to tax credit, and those incurred in re-entrustment of research and development services, comprehensively taking into account the following circumstances that can be seen by comprehensively considering the following circumstances in the entries in subparagraph 4, 5, 5, 5, 5, 5, and 6, and 3, and 3:

A) In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted in accordance with the text of the law, barring any special circumstances, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds, and in particular, it accords with the principle of fair taxation to strictly interpret the provisions that can be seen as clearly preferential provisions among the requirements for tax exemption or exemption (see, e.g., Supreme Court Decisions 2008Du11372, Aug. 20, 2009; 2005Da19163, May 25, 2006).

B) Article 6(1) of the Enforcement Decree of the Restriction of Special Taxation Act (Article 6(2) of the former Enforcement Decree of the Restriction of Special Taxation Act in the case of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21307 of Feb. 4, 2009), "entrusted manufacturing business under the OEM method prescribed by Presidential Decree" is divided into "entrustment" and "re-entrustment" by stipulating that "the manufacturing business under the OEM method is entrusted by the trustor and sub-entrustment of the production and supply of products by entrusting the production of products by the OEM method."

C) However, Article 8(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010); Article 9(2) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21307, Feb. 18, 2010); Article 9(2) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21307, Feb. 4, 2009); subparagraph 1(b) of the [Attachment 6] provides that research and development expenses subject to tax credit are "cost for entrusting research and development services, etc. to an institution of domestic or foreign enterprises, such as research institutes or dedicated departments,

D) After February 2, 2012, subparagraph 1 (b) of the Enforcement Decree of the Restriction of Special Taxation Act [Separate Table 6] revised by Presidential Decree No. 23590 on February 2, 2012 provides that "the expenses for the entrustment of research and development services in the field of science and technology (including re-entrustment) to institutions, such as domestic and foreign research institutes or dedicated departments, are included in the subject of tax credit, and on this point, "in the reason and main contents of the amendment of the above law, adding expenses for the re-entrustment of general research and development to the subject of tax credit for research and development expenses", and in the revised tax law theory of the National Tax Service's "2012 Tax Act", it seems that "The purpose of the amendment of the above regulations is "in consideration of the reality of re-entrustment of part of the entrusted research and development services without performing all research and development services," and "the Enforcement Decree of the Restriction of Special Taxation Act is excluded from the subject of tax credit prior to the amendment 2011.

E) The plaintiffs entrusted the research and development services to the trustee company, and the trustee company consented, and the legal principles on delegation between the plaintiffs and the trustee company are applied. Article 682(1) of the Civil Code provides that "the mandatory shall not allow a third party to perform the delegated affairs on behalf of the mandator without the consent of the mandator or any inevitable reason."

F) The Plaintiffs claim to the effect that it is unfair in violation of the principle of self-responsibility to exclude the tax credit for re-entrustment made by the consignment company under their own responsibility by having the truster, who is the truster, be responsible for the decision that it did not itself. However, it is difficult to view that the Plaintiffs are excessively unreasonable or harsh in light of the enormous tax benefits that they enjoy, and thus, they are not liable to the Plaintiffs for the failure to enjoy the benefits of tax credit because they did not conclude such an agreement with the consignment company.

3) Whether the re-trustee is eligible for tax credit where the re-trustee does not hold a research institute or a dedicated department

Even if the expenses incurred in re-entrustment of research and development services fall under the tax credits, and as seen earlier, it is reasonable to view that the strict interpretation of the provisions that clearly consider the preferential provisions in the provisions on tax reduction and exemption is consistent with the principle of tax equity, and that it does not fall under the tax credits in cases where the re-entrusted company does not have a research institute or a dedicated department, taking into account the following circumstances known in full view of the overall purport of the pleadings, and in cases where the research institute

가) 구 조세특례제한법 시행령(2010. 2. 18. 대통령령 제22037호로 개정되기 전의 것) 제8조 제1항， [별표6] 제1호 나목 ①， 구 조세특례제한법 시행령(2009. 2. 4. 대 통령령 제21307호로 개정되기 전의 것) 제9조 제2항， [별표6] 제1호 나목 ①은 연구개발용역을 위탁함에 따른 연구개발비 세액공제에 관하여 그 수탁기관을 ㉮ 고등교육법에 의한 대학 또는 전문대학，㉯ 국 • 공립연구기관，㉰ 정부출연연구기관，㉱ 과학기술분야를 연구하는 국내외의 비영리법인(비영리법인에 부설된 연구기관을 포함한다)， ㉲ 국내외 기업의 연구기관(과학기술분야를 연구하는 경우에 한한다) 또는 '전담부서'，㉳「산업기술연구조합 육성법」 에 의한 산업기술연구조합，㉴ 산업디자인진흥법에 의한 한국디자인진흥원， ㉵ 「국가과학기술 경쟁력 강화를 위한 이공계지원 특별법」 에 의한 연구개발서비스업을 영위하는 기업， ㉶「산업교육진흥 및 산학협력촉진에 관한 법률」 에 의한 산학협력단，㉷ 한국표준산업분류표상 기술시험 ・ 검사 및 분석업을 영위하는 기업으로 제한적으로 열거하고 있다.

Meanwhile, Article 8 (1) of the former Enforcement Decree of the Restriction of Special Taxation (amended by Presidential Decree No. 22037, Feb. 18, 2010); Article 8 (1) [Attachment 6] subparagraph 1 (a) of the former Enforcement Decree of the Restriction of Special Taxation (amended by Presidential Decree No. 21307, Feb. 4, 2009); Article 9 (2) [Attachment 6] subparagraph 1 (a) of the former Enforcement Decree of the Restriction of Special Taxation Act; subparagraph 1 (a) of the former Enforcement Rule of the Restriction of Special Taxation Act (amended by Ordinance No. 151, Apr. 20, 2010); Article 7 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Ordinance of the Ministry of Strategy and Finance No. 96, Apr. 7, 2009); and Article 7 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Ordinance No. 21307, Apr. 29, 2008>

In addition, Article 7 (1) 2 of the former Technology Development Promotion Act (Amended by Act No. 10445, Mar. 9, 201); Article 15 (1) and (2) of the former Enforcement Decree of the Technology Development Promotion Act (Amended by Presidential Decree No. 22977, Jun. 24, 2011); Articles 7 and 8 of the former Enforcement Rule of the Technology Development Promotion Act (Amended by Ordinance of the Ministry of Knowledge Economy No. 214, Nov. 25, 201); and Articles 7 and 8 of the former Enforcement Rule of the Technology Development Promotion Act (Amended by Ordinance of the Ministry of Education, Science and Technology No. 214, Nov. 25, 2011), in order to be recognized as a research institute, research and development work in the field of science and technology shall be mainly conducted by the department and reported to the head of the Korea Industrial Technology Promotion Association entrusted by the Minister of Education, Science and Technology, and the matters reported by each of the agencies shall be determined and announced by the Minister.

As such, the Decree on the Restriction of Special Taxation limits a trustee company to an institution that satisfies certain requirements, and it is not easy to determine whether it constitutes a research and development service, so it is likely that the tax credit system for research and development expenses may be abused, and if a company that is not capable of performing research and development activities carries out such research and development activities, research and development activities may be performed insufficiently, and thus, it seems to operate the tax credit system for the annual development costs objectively and fairly by granting tax credit benefits only for the research and development services performed by each of the above organizations that

B) If research and development services are entrusted to an institution holding a dedicated department as alleged by the Plaintiffs, regardless of whether the dedicated department is owned by the re-entrusted company, expenses incurred in the entrustment are subject to the tax credit for research and development expenses, and it may fall into research and development activities, such as entrusting research and development services to an institution holding a dedicated department and re-entrusted services to an institution holding the dedicated department, and abuse the tax credit system for research and development expenses. In addition, this is contrary to the principle of substantial taxation by granting tax credit based only on the form that research and development services are entrusted to an institution holding the dedicated department, which does not hold the dedicated department, even though the research and

C) The Decree on the Restriction of Special Taxation stipulates that research and development expenses shall be divided into cases of self-research and development, entrustment, and joint research and development, and in cases of self-research and development, personnel expenses of researchers engaged in research and their researchers engaged in research activities in the field of science and technology and of those who directly support their research activities, shall be one of the expenses subject to the tax credit. In this regard, the Seoul High Court (2010Nu25635) ruled that even a researcher who works for a dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated

4) Sub-committee

Therefore, each of the dispositions in this case is legitimate, and all of the plaintiffs' claims are without merit.

3. Conclusion

Then, the plaintiffs' claims of this case are all dismissed as it is without merit, and it is so decided as per Disposition.