Seoul Administrative Court 2012Guhap29509 (2013.05)

2012west 1281 (2012.09.05)

If research and development services are entrusted to an enterprise holding a department exclusively in charge of research and development, expenses incurred in the entrustment, regardless of whether it has a department exclusively in charge of re-trustee

If a company with a department exclusively in charge of research and development entrusted research and development with research and development services, even if the trustee company requested another company (re-trustee) to provide research and development services, the expenses incurred in the entrustment is subject to tax credit, regardless of whether it has a department exclusively in charge

Article 10 of the Restriction of Special Taxation Act (Tax Credit for Research and Manpower Development Expenses)

2013Nu24732 Revocation of revocation of disposition of imposing corporate tax

2013Nu2479(combined) revocation of revocation of the imposition of corporate tax

2013Nu24756, revocation of disposition of imposing corporate tax

2013Nu24763 (Joint) Revocation of Disposition of Corporate Tax Imposition

2013Nu2470(combined) revocation of revocation of the imposition of corporate tax

2013Nu24787(combined) revocation of disposition of imposing corporate tax

1. AA Securities Corporation 2. BB Association Federation;

1. The superintendent of the tax office of Seodaemun;

Seoul Administrative Court Decision 2012Guhap29509, 2012Guhap31892, 2012Guhap32369, 2012Guhap32536, 2012Guhap32536, 2012Guhap38428 (Joinder), 2012Guhap40834 (Consolidation) decided July 5, 2013

July 8, 2014

July 22, 2014

1. Revocation of a judgment of the first instance;

2. On February 11, 201, the head of Yeongdeungpo-gu Tax Office revoked each disposition of imposition of corporate tax on the Plaintiff AA Securities Co., Ltd. from April 1, 2007 to March 31, 2008, corporate tax OOO on April 1, 2009 to March 31, 201, respectively.

3. On December 5, 201, the imposition of the corporate tax on the Plaintiff BB Association Federation on December 5, 201 by the director of the tax office in Seodaemun-gu shall be revoked.

4. Of the total costs of litigation, the part arising between the Plaintiff AA Securities Company and the Head of Yeongdeungpo District Tax Office shall be borne by the Head of Yeongdeungpo District Tax Office, and the part arising between the Plaintiff BB Association Federation and the Head of Seodaemun Tax Office shall be borne by the Head of Southern District Tax Office.

The judgment above (the plaintiffCC life insurance company, DD damage insurance company, EE life insurance company, FFF bank company were withdrawn from the lawsuit, and the above plaintiffs' appeal is not judged).

1. Details of the disposition;

The court's explanation on this part is the same as the entry on the hedge part of the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the text of Article 420 of the Civil Procedure Act.

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

(a) Spirits of the parties;

1) The plaintiffs

If research and development services have been entrusted to an enterprise holding a department exclusively in charge of research and development, even if the trustee company has requested another enterprise (hereinafter referred to as "re-entrusted enterprise") to re-entrusted research and development services (hereinafter referred to as "re-entrusted in a sense distinguished from the entrustment"), the expenses incurred in the entrustment, regardless of whether it has a department exclusively in charge of re-entrusted enterprises, are eligible

2) The Defendants

A) Article 9(2) and [Attachment 6] subparag. 1(b) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19811, Dec. 30, 2006; hereinafter “former Enforcement Decree of the Restriction of Special Taxation Act”) does not constitute a consignment under Article 9(2) and [Attachment 6] subparag. 1(b) of the former Enforcement Decree of the Restriction of Special Taxation Act (only the case of a contract or sale) of the consignment company that entered into a service consignment agreement with the Plaintiffs and the consignment company that did not hold a research institute

B) Even if the costs of research and development services for re-entrusted companies are subject to tax credit, the costs paid to re-entrusted companies that do not hold a dedicated department are not subject to tax credit.

B. Relevant statutes

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the judgment is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Determination by issue

(1) The meaning of entrustment and legal form

The purpose of the tax credit system for research and human resources development expenses under Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9272, Dec. 26, 2008; hereinafter the same) is to deduct the amount of money paid in return for the purpose of encouraging the development of technical human resources by various research institutes, research and development business enterprises, organizations or research and development business research and development business departments, etc., from income tax or corporate tax in the pertinent taxable year. Thus, only the expenses required for research and human resources development by research institutes, etc. with specific qualifications should be the object of tax credit.

이렇게 볼 때, 구 조세특례제한법 시행령 제9조 제2항 [별표 6]에서 세액공제의 대상으로 열거한 비용 중 1호 나목 ①에서 규정하는 위탁 이라 함은 그 아래 ㉮에서 ㉷까지 열거하는 대학, 연구기관 또는 기업 등에게 기술개발용역을 의뢰하는 것을 가리키고, 이 때 체결되는 연구개발용역계약은 개개의 약정에 의하여 그 내용이 결정될 것이지만 연구개발이 가지는 특성상 일의 완성을 목적으로 심기 어려운 면에서 대체로 위임계약에 유사할 성질을 가질 것이지만 목표로 삼은 기술개발의 성취를 지향하는 면에서 도급의 성질도 아울러 가지는 일종의 무명계약의 형태를 취할 가능성이 크다.

Therefore, even if the research and development service contract has used legal terms such as contract or sale, if the entire purpose is to request the technical development service prior to the request, the cost to be paid in return is still the research and development expenses subject to the tax credit under Article 10 of the former Restriction of Special Taxation Act.

(2) Scope of re-entrustment and tax credit

(A) Whether the entrustment is subject to re-entrustment

First of all, there is no dispute between the parties that the contract entered into between the plaintiffs and the trustee companies falls under the entrustment under Article 9 (2) and 6 [Attachment Table 6] 1 (b) of the former Enforcement Decree of the Restriction of Special Taxation Act. Although the trustee company is unable to clearly determine the contents of the re-entrustment because the contract is not submitted with the request for research and development services to the re-trustee company, the contents and result of the research and development services performed by the re-trustee company, and the meaning of the above entrustment, etc., even if the form of the contract takes the form of the contract such as the contract, the re-entrustment is deemed to

Meanwhile, since expenses eligible for tax credit are expenses paid to universities, institutions, companies, etc. listed in the above attached Table, they should be expenses paid to them, the issue is whether the expenses incurred by the consignment of the entrusted research and development services to the entrusted companies are still the expenses." "The expenses incurred by the consignment of the entrusted research and development services to the entrusted companies are also the expenses incurred by the consignment of the entrusted companies", and "the expenses need to receive technical support from various experts in various fields in order to smoothly develop technology, as well as there is no reason to exclude other experts' cooperation, in the case of research and development services contracts, it is necessary to wide extend the paths of the consignment in the case of research and development services contracts, and this is also actively encouraged in the tax credit system for research and development, so it should be interpreted that it is included in the concept of the consignment, regardless of whether there is any explicit provision, (in this respect, it does not constitute a new consignment of research and development services contract or a new consignment of the entrusted companies, even if it is not included in the revised research and development services contract."

In full view of the following circumstances recognized by the above facts of recognition, it is reasonable to deem that the case where a re-entrusted company does not hold a research institute or a department in charge is eligible for tax credit.

① The provision of this case provides that the expenses incurred by the Plaintiff for the entrustment of technology development services to a domestic or foreign enterprise’s research institute or a dedicated department. According to the literal interpretation, if the expenses incurred by the Plaintiff constitute expenses for the entrustment of technology development services to a domestic or foreign enterprise’s research institute or a dedicated department, it shall be subject to the tax credit for research and development expenses. Therefore, a magnetic research entity (a domestic or foreign enterprise’s research institute or a dedicated department) does not need to perform all entrusted research and development services in its dedicated department, and it may

② In the case of large-scale computer development services, the integration of the development system is a key element of development. Since the trustee company is important in the role and responsibility of the trustee company, such as performance liability, defect repair liability, delay of performance, maintenance and repair liability, liability, and liability for damages to the Plaintiff, the instant provision stipulates that the trustee company has a dedicated department as a requirement for tax credit for research and development expenses. On the other hand, the re-trustee does not directly bear any responsibility to the Plaintiffs, and the trustee company is ultimately liable to the Plaintiffs. Therefore, it does not seem that there is no need to hold a dedicated department even to the re-trustee company in the tax credit for research and development expenses (this refers to where the trustee company allows other departments than the dedicated department to perform part of research and

(3) If the outcome of a service performance falls under research and development services, and such research and development services were conducted under the responsibility for the calculation of the entrusted company according to an entrustment contract with a trustee holding a dedicated dedicated dedicated dedicated dedicated dedicated responsibilities, it may not be deemed that the legislative intent of the provisions on tax credit for research and development expenses is not violated, and it is difficult to deem that the truster, as the truster,

④ Meanwhile, Subparag. 1 (b) of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 24368, Feb. 15, 2013) revised the part of the instant provision to a domestic or foreign research institute or a dedicated department (limited to the part directly performed by the dedicated department, etc.) of a domestic or foreign company, thereby clearly exempting the expenses for research and development services performed by the dedicated department of the re-entrusted company from the tax credits subject to tax credits (the foregoing amended provision applies from the taxable year first commenced after January 1, 2013).

(3) Sub-determination

Therefore, the expenses incurred by the plaintiffs in entrusting research and development services are subject to tax credit regardless of whether they have a department exclusively in charge of re-entrustment and re-entrusted enterprises, and each disposition of this case is unlawful

3. Conclusion

Therefore, each claim of the plaintiffs in this case is justified, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked, and it is so decided as per Disposition.