2013west 4386 (O3.11)

The burden of proof of notice delivery and feasibility of patent lease.

The burden of proof of notice delivery lies in the tax authority. The duty of proof of notice delivery is classified into "other financial businesses" until January 31, 2008, and "business income is determined on the basis of this, since the act of holding intangible property rights such as patent rights and giving a third party the right to use them, and collecting royalties such as royalties is classified into "other financial businesses" and "business income from February 1, 2008."

Disposition of revocation of imposition of value-added tax, etc. by the Seoul Administrative Court 2014Guhap6015

AA

BB Director of the Tax Office

October 31, 2014

November 14, 2014

1. We affirm that the Defendant’s imposition of value-added tax terms and conditions (including additional tax) on June 24, 2013 by the Plaintiff on June 24, 2013 is invalid.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The disposition of imposition of value-added tax for February through 2012 and the disposition of imposition of global income tax for 2008 through 2012 (hereinafter referred to as "amount of corrected tax") among the dispositions of imposition stated in Paragraph (1) of this Article and the attached Form, which the Defendant reported to the Plaintiff, shall be revoked (the amount of tax stated in the "amount of corrected tax") (the amount of tax on August 3, 2013, August 3, 2013, August 15, 2013, and August 10, 2013, respectively, shall be the amount of tax recorded on August 2, 2013, 2013, August 14, 2013, and December 3, 2013).

1. Details of the disposition;

A. The Plaintiff is the representative director of CCTV Co., Ltd. (hereinafter “CC”). From January 1, 1996, the Plaintiff lent a patent right for waste and sewage treatment equipment (hereinafter “instant patent right”). From October 1, 2005 to September 30, 2012, the Plaintiff reported and paid the instant patent royalty terms and conditions (hereinafter “instant income”) to the Defendant as other income.

B. The Director of the Regional Tax Office notified the Defendant of the taxation data that “The instant income constitutes business income since the instant patent lending was continuously and repeatedly made to the Defendant.”

C. Accordingly, the Defendant issued a revised and notified the Plaintiff’s global income tax in January 2006 and February 2012, as stated in the “the first tax amount” column of the attached Form.

D. On October 1, 2013, the Plaintiff appealed and filed an appeal on October 1, 2013. On March 11, 2014, the Tax Tribunal rejected a request for a trial against the imposition of value-added tax on the first time in 2006 from the Tax Tribunal as the lapse of the period for request. ② The imposition of global income tax in 2008 through 2012 was determined by re-calculated the amount of tax reduced or exempted on technology transfer income due to changes in the share of the reduced or exempted income (the total amount of income increases from other income to the business income, and the total amount of income is dismissed. ③ The remaining claims are dismissed.”

E. Accordingly, the Defendant revised the global income tax amount as stated in the separate sheet of “the corrected tax amount” (hereinafter “the instant disposition”), as stated in the separate sheet of “the assessment of global income tax” (hereinafter “the assessment of global income tax”) and the remaining portion of the assessment of global income tax in 2008 and 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, 2-2, Eul evidence 2-6 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In relation to the imposition of value-added tax on January 2006, the Plaintiff was not served with the first notice of the value-added tax payment for the first time in 2006, and thus the said disposition is void as a matter of course.

(2) In relation to the imposition of value-added tax, the Plaintiff grantedCC the right to use the patent right of this case under a single loan agreement, received the patent fee of this case for 17 years without transferring or lending it to others, and the Plaintiff is virtually the same as the transfer of the patent right of this case toCC by the term of the patent contract. Thus, the patent lease of this case does not constitute continuous and repeated supply of services, and thus, is not subject to value-added tax.

(3) As to the imposition of global income tax

As a patent right is an industrial property right under Article 21(1)7 of the Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; 2010, 2011, and 2012, the current Income Tax Act; hereinafter the same shall apply) with respect to imposition of global income tax in 2008 and 2009, the instant income constitutes other income.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The notice for payment of value-added tax was served on 1 January 2006

(A) Since the moving-in to the Seoul EE-gu FFdong on August 29, 2006, the Plaintiff has been making the domicile in the above domicile until now.

"(나) CC은 '서울 GG구'에 본점을, 'HH 남동구'에 남동공단지점을 두고 있다. CC 남동공단지점은 2013. 6. 24. 'HH 남동구 QQ동'로 지점을 이전하였다. CC은 법인등기부에 지점의 주소를 변경하지 않았으나, 2013. 8. 30. 사업자등록에 사업장소재지를 'HH 남동구 Z고개'로 정정하였다.", "(다) 피고는 2013. 6. 21. 'HH 남동구 XX로'를 주소지로 하여 2006년 1기 부가가치세 납세고지서를 발송하였다. 국내등기조회서(을 제1호증), 등기우편물 송달현황조회화면(을 제5호증)에 의하면, 위 납세고지서는 2013. 6. 24. 11:16경 남HH우체국을 통해 위 주소지로 송달되고,회사동료 JJJ'에 의하여 수령된 것으로 되어 있다.",(라) JJJ은 CC 남동공단지점이 입주한 HH 남동구 XX로 387 소재 건물의 경비원이다.

(E) On the other hand, on July 2013,CC applied for the service of transferring the address at a post office (if the address of the addressee is changed due to transfer, transfer, etc., the service of transmitting the mail to a new address for three months from the date of commencing the transmission). Accordingly, the mail sent to the former address was sent to the new post office.

(2) Conclusion, etc. of the patent lease agreement of the instant case

(A) On January 1, 1996, the Plaintiff concluded a patent lease agreement withCC and the instant patent lease agreement with each other as follows, and on December 27, 1999, respectively.

Patent Lease Contracts of this case

1. A license;

1) The Plaintiff andCC cooperates with the Plaintiff to have the Plaintiff’s invention patented.

2) The above application for patent must specify the Plaintiff as the inventor andCC as the applicant.

2. Contract term;

1) The term of the contract is one-half of the patent term in the case of a patent, or one-half of the patent term in the case of substantial protection, such as designation of new technology.

2) If the excess profit cannot be expected because of the legal or substantial absence of protection, it would be until another person uses the invention.

3. Rental fees;

1) The user fee shall be the smaller of 2% of the sales amount of projects using patent rights, etc. and 35% of the gross sales profit exceeds the gross profit of PPP during the preceding three years (the immediately preceding and the preceding two years).

In cases where the gross sales profit for three years* is incidental (-), it shall be calculated as zero.

2) The period of calculating user fees is each period for settlement of accounts, and the standard of gross sales profit is numerical value in the audit report of the certified public accountant.

3) The beginning fiscal year for the payment of user fees shall be the year when the patent is determined (including the designation of new technology by the Ministry of Construction and Transportation or the Ministry of Science and Technology), and the project shall be the remainder after the beginning of the payment in the invention utilization project.

* In the event that the project is in progress, it shall be calculated as sales status under the accounting of the project, and shall be settled at the time of the completion of the project.

* The time of the completion of the project shall be the time of receipt of the balance, but the cost of repairing defects within the warranty period for defects thereafter shall be estimated if the total cost of repairing defects exceeds 10% of the sales of the project in question.

The fixed date of user fees by each term for the settlement of accounts shall be the closing date.

Alteration contract.

The patent lease agreement of this case between the Plaintiff andCC, which was concluded on January 1, 1996, shall be amended as follows, and it shall be applied from the period of settlement of accounts beginning on October 1, 1999:

Article 1 (Calculation of Usage Fees)

Since it is not possible in theory and in fact to make cumulative excess profit by complicated and inaccurate calculation of excess profit in the calculation method of user fee, it is simply changed to 2% of sales.

Article 2 (Calculation Period)

The settlement year in which the sales amount is less than KRW 20 million shall be calculated on the basis of the year in which the royalties are calculated without calculating the royalties, and is calculated on the basis of the combination with the following year.

(B) The Plaintiff received patent fees of this case fromCC.

[Reasons for Recognition] Gap evidence 4, 9, 14 (including paper numbers), Eul evidence 1, 5, before oral argument

The purpose of body

D. Determination

(1) As to the imposition of value-added tax on January 2006

(A) According to Article 8(1) of the Framework Act on National Taxes, documents under this Act or other tax-related Acts shall be served on the domicile, residence, place of business or office of the designated person (referring to the person designated as the receiver; hereinafter the same shall apply). According to Article 9 of the same Act, where a person to receive documents reports to the government at the place where the documents are to be served among his domicile or place of business, such documents shall be served on the reported place. According to Article 10 of the same Act, documents shall be served by mail or electronic delivery (Paragraph 1), and where documents relating to notice of tax payment, demand for payment, disposition on default, or governmental order under tax-related Acts are served by mail, they shall be served by registered mail (Paragraph 2), and where documents are not served on the person to receive documents at the place where the documents are to be served by mail, they may be served on other employees, employees, or a person living together with the authority to identify

Meanwhile, in cases where a person to receive documents, such as a person liable for duty payment, who is the other party to a taxation, has expressly or explicitly delegated the right to receive mail or other documents to another person, such delegated person shall be deemed to have lawfully served the documents on the person to receive the documents, and the delegated person shall not necessarily have to be an employee of the delegating person or a person living together (see Supreme Court Decision 200Du164, Jul. 4, 200).

The service of documents under the tax law is an act that seriously affects the formation of a tax claim obligation relationship between the State and the taxpayer. In particular, the tax payment notice service becomes the starting point of the collection procedure, and the relationship between the State and the taxpayer is not only centered on the taxation claim liability relationship between the State and the taxpayer, but also on the important meaning of the basis of the period for objection by the taxpayer. Therefore, the provisions on the service method under Article 10 of the Framework Act on National Taxes are compulsory provisions in the purport that the parties concerned are able to clearly determine the service in preparation for disputes between the parties in regard to whether the service is lawfully made in consideration of the importance of the service, such as a tax payment notice, and it is reasonable to interpret that there was no legitimate service if the other party fails to meet the requirements under the above provision. Since the administrative disposition

(B) Since the Plaintiff is in office as the representative director ofCC, the remaining branch ofCC is deemed to fall under the place of service. Since the JJ is not an employee ofCC, but it appears to have received and delivered toCC postal items, it can be deemed to have been delegated the right to receive the said postal items. According to the response of the head of JH, which was submitted after the closing of argument, on June 24, 2013, the JJ received the value-added tax payment notice at around 11:16, 2006 and did not return it. However, on June 24, 2013, the remaining branch ofCC did not have the right to receive the said tax payment notice at the time of 60 years after the date of receipt by the JJ's 20-year office, the Plaintiff cannot be deemed to have received the said tax payment notice at the time of 10-year office after the expiration of the 6-year office's submission of the tax payment notice at the time of 20-year office's rejection.

(2) As to the imposition of value-added tax on February 2, 2006 to February 2012

(A) A person who supplies goods or services independently from a business entity that is liable to pay value-added tax under Article 2(1) of the Value-Added Tax Act refers to a business entity that supplies goods or services in the form of a continuous and repeated manner and with a continuous and repeated intent to create a value-added value-added value-added. Here, “ continuous and repeated supply of goods or services” means that “the continuous and repeated supply of goods or services is repeated several times” and it cannot be said that there was an intention to continuously supply services even in the case of the supply of services with an intention to supply services that require time lapse (see Supreme Court Decision 90Nu8442, May 28, 1991).

(B) On January 1, 1996, the Plaintiff entered into a patent loan agreement of this case withCC for a long time (20 years from the filing date of the patent application). The Plaintiff appears to have entered into a contract of this case for a long time to reduce the number of times to which the patent contract was entered into on a short-term basis. As such, the contract period of one to two years can be deemed to be substantially the same as the extended contract period. ② The Plaintiff received 2% of annual sales fromCC under the patent loan agreement of this case as the patent fee, and the Plaintiff received 1,807,975,00 won from October 1, 2005 to September 30, 2012. ③ The Plaintiff’s use fee of this case from the patent right of this case was large amount of time to the 1,807,975,000 won, ③ the Plaintiff’s continued to deny the patent license of this case regardless of the type of patent right or a single transaction, and the Plaintiff’s continued to use the patent right of this case and the single transaction.

(3) As to the imposition of global income tax in 2008 to 2012

(A) The term “business income” under Article 19(1) of the Income Tax Act refers to the income accrued from a business, which is a social activity, continuously and repeatedly conducted on an independent basis for profit-making purposes (see Supreme Court Decision 2010Du25633, Mar. 24, 2011). Whether the income that a person transfers or leases an industrial property right, such as a patent right, constitutes business income shall be determined in light of social norms, taking into account various circumstances, such as the nature of the transfer or lending of the relevant industrial property right, the existence of a profit-making nature of the relevant industrial property right, the existence of a continuous and repetitiveness, the length of the transaction period, and the difference between the amount received (see Supreme Court Decision 2003Du14505, Aug. 19

(B) According to Article 29(2) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010); Article 19(3) of the Income Tax Act (amended by Presidential Decree No. 2012, Feb. 18, 2010; Presidential Decree No. 2009; Presidential Decree No. 2010 through 2012; Presidential Decree No. 2010; Presidential Decree No. 20320, Feb. 2, 2010; Presidential Decree No. 20100; Presidential Decree No. 20358, Feb. 19, 201; Presidential Decree No. 2010; Presidential Decree No. 20100; Presidential Decree No. 20100, Feb. 1, 201; Presidential Decree No. 20100; Presidential Decree No. 20100, Feb. 1, 2008.

3. Conclusion

If so, it is confirmed that the imposition of the value-added tax for the first time in 2006 is null and void, and the remainder of the plaintiff's claim is dismissed, and it is so decided as per Disposition.

public official law, order of law,

▣ 국세기본법

Article 8 (Service of Documents)

(1) Documents prescribed by this Act or other tax-related Acts means a person designated as a receiver (referring to a person designated as a receiver).

이하 같다)의 주소, 거소(居��), 영업소 또는 사무소[정보통신망을 이용한 송달(이하 전자송달 이라 한다)인 경우에는 명의인의 전자우편주소(국세정보통신망에 저장하는 경우에는 명의인의 사용자확인기호를 이용하여 접근할 수 있는 곳을 말한다)를 말하며, 이하 주소 또는 영업소 라 한다]에 송달한다.

Article 9 (Report on Place to be Serviced)

A place prescribed by Presidential Decree where a person to receive documents under Article 8 is to receive service from among his/her domicile or place of business.

Where a report is made to the Government as prescribed, it shall be served at the reported place. The same shall also apply where it is modified.

Article 10 (Service Method of Documents)

(1) Documents under Article 8 shall be served by means of delivery, mail or electronic delivery.

(2) When any document related to notification, demand, disposition on default, or order issued by the Government under tax-related Acts is served by mail, such document shall be served by registered mail: Provided, That a tax payment notice for interim prepayment provided for in Article 65 (1) of the Income Tax Act and a tax payment notice for collection provided for in Article 48 (3) of the Value-Added Tax Act that falls short of the amount prescribed by Presidential Decree may

(3) Documents by delivery shall be served by a public official of the relevant administrative agency on a person to be served with documents at the place for service: Provided, That if a person to be served with documents refuses to do so, documents may be served at another place.

(4) In cases falling under paragraphs (2) and (3), if a person to be served with a document does not appear at the place where such document is to be served, it may be served to his/her employee, worker or cohabitant; if the person to be served with the document, or his/her employee, worker or cohabitant refuses to receive the document without justifiable grounds, the document may be placed at the place where the document is to be served.

(5) Where a person to be served with documents under paragraphs (1) through (4) relocates his/her address or place of business, such documents shall be confirmed by resident registration cards, etc. and served at the relocated place.

(6) When documents are delivered, the recipient shall sign or affix a seal on the service slip. In such cases, if the recipient refuses to sign or affix a seal, such fact shall be recorded on the service slip.

(7) When documents are served by regular mail, the head of a relevant administrative agency shall prepare and keep a record to confirm the following matters:

1. Title of documents;

2. Name of the person to receive the document;

3. Place of service;

4. Date sent;

5. Main details of the documents.

(8) Electronic service shall be limited to where a person to receive documents files an application, as prescribed by Presidential Decree: Provided, That where a taxpayer voluntarily pays the tax amount as prescribed by this Act or other tax-related Acts before a tax payment notice is served, as prescribed by Presidential Decree, the electronic service shall be deemed applied for at the time of the voluntary payment

(9) Notwithstanding paragraph (8), service may be made either by delivery or mail where the electronic service is impossible due to a failure of national tax information and communications networks or where any ground prescribed by Presidential Decree exists.

(10) Matters necessary for the specific scope and methods of electronic delivery pursuant to paragraph (8) shall be prescribed by Presidential Decree.

Article 12 (Effectuation of Service)

(1) Documents served under Article 8 shall take effect when they are served to a person to whom they are to be served: Provided, That in the case of electronic service, they shall be deemed served to the person to whom they are to be served when they are placed in the electronic mail address designated by such person (in the case of service by means

▣ 국세기본법 시행령

Article 5-2 (Scope of Delivery by Regular Mail)

The amount prescribed by Presidential Decree in the proviso to Article 10 (2) of the Act means 500,000 won.

Article 6-2 (Application for Electronic Service)

(1) Any person who intends to file an application for electronic delivery or revoke such application pursuant to Article 10 (8) of the Act shall submit a document stating the following matters to the head of the competent tax office:

1. Personal information, such as a taxpayer's name and resident registration number;

2. Address or location of the head office and place of business of a taxpayer;

3. Electronic mail address or contact point to receive information on electronic service;

4. Method of guidance for electronic service and reason for application (Withdrawal);

5. Other matters determined by Ordinance of the Ministry of Strategy and Finance.

(2) The commencement and withdrawal of electronic service shall begin on the day following the date an application pursuant to paragraph (1) is received.

(3) Where a person who has withdrawn an application for electronic service intends to file a new application for electronic service, he/she may do so 30 days after the date of such withdrawal.

(4) Where a taxpayer pays a tax amount voluntarily as prescribed by this Act or other tax-related Acts, as prescribed by Presidential Decree, in the proviso to Article 10 (8) of the Act, means that a taxpayer pays the total amount of national taxes falling under any of the following subparagraphs through the national tax information and communications network by account transfer under the main sentence of Article 18 (3) of the Enforcement Decree of the National Tax Collection

1. The amount of income tax under Article 65 (1) and (2) of the Income Tax Act;

2. Value-added taxes under Articles 48 (3) and 66 (1) of the Value-Added Tax Act.

Article 6-3 (Grounds to Make Electronic Service Impossible)

"Grounds prescribed by Presidential Decree" in Article 10 (9) of the Act means any of the following cases:

1. Where the electronic delivery is impossible due to the disorder of information and communications networks;

2. Other cases determined by the Commissioner of the National Tax Service where electronic service is impossible.

Article 6-4 (Scope, etc. of Electronic Service Documents)

(1) Documents that can be served electronically pursuant to Article 10 (10) of the Act shall be a tax payment notice or payment notice, a notice of refund of national tax, a notice of return or guidance, and other documents prescribed by the Commissioner of

(2) Where the Commissioner of the National Tax Service delivers a notice of tax payment or a notice of tax refund among the documents under paragraph (1), he/she shall allow the relevant taxpayer to peruse the relevant documents by accessing the national tax information and communications network.

(3) Where the Commissioner of the National Tax Service delivers documents other than those under paragraph (2), he/she shall send them to the electronic mail address designated by the relevant taxpayer

▣ 부가가치세법(2013. 1. 1. 법률 제11608호로 개정되기 전의 것)

Article 1 (Taxable Objects)

(1) Value-added tax shall be imposed on the following transactions:

1. Supply of goods or services; and

③ 제1항에서 용역 이란 재화 외의 재산 가치가 있는 모든 역무(����) 및 그 밖의 행위를 말한다.

Article 2 (Taxpayer)

(1) Any of the following persons shall be liable to pay value-added taxes under this Act:

1. A person (hereinafter referred to as an "business operator") who supplies goods (referring to goods under Article 1; hereinafter the same shall apply) or services (referring to services under Article 1; hereinafter the same shall apply) independently for business, regardless of whether the business purpose is profit-making or non-profit;

2. A person who imports goods.

(2) Persons liable to pay taxes under paragraph (1) shall include individuals, corporations (including the State, local governments, and local government associations), and unincorporated associations, foundations, or other organizations.

Article 7 (Supply of Services)

(1) The supply of services shall be either the supply of services or having others use the goods, facilities or rights, pursuant to all contractual and legal grounds.

▣ 소득세법(2009. 12. 31. 법률 제9897호로 개정되기 전의 것)

Article 19 (Business Income)

(1) Business income shall be the following income generated during the relevant year:

11. Incomes accruing from the real estate business (excluding the business falling under the real estate rental income and the real estate sales business under subparagraph 12; hereinafter the same shall apply), lease business and enterprise service business;

Article 21 (Other Incomes)

(1) Other income shall include interest income, dividend income, real estate rental income, business income, labor income, annuity income, retirement income, and capital gains as follows:

7. Money and other valuables received in consideration of the transfer or lease of mining rights, fishing rights, industrial property rights and industrial information, industrial secrets, trademark rights and business rights (including the rights to lease a store prescribed by Presidential Decree), rights incidental to permission to collect earth, sand and rock, rights to develop and use underground water, and other assets or rights similar thereto;

▣ 소득세법

Article 19 (Business Income)

(1) Business income shall be the following income, generated in the relevant taxable period:

12. Income generated from real estate business and rental business: Provided, That income generated by lending rights prescribed by Presidential Decree, such as easement, etc. shall be excluded;

(3) Except as otherwise expressly provided for in this Act, the scope of businesses under the subparagraphs of paragraph (1), the Korea Standard Industrial Classification publicly announced by the Commissioner of the Statistics Korea pursuant to Article 22 of the Statistics Act shall be followed, and other necessary matters concerning the scope of

Article 21 (Other Incomes)

(1) Other incomes are interest income, dividend income, business income, labor income, annuity income, retirement income and income other than capital gains, which are prescribed in the following subparagraphs:

7. 광업권・어업권・산업재산권・산업정보, 산업상 비밀, 상표권・영업권(대통령령으로 정하는 점포 임차권을 포함한다), 토사석(������)의 채취허가에 따른 권리, 지하수의 개발・이용권, 그 밖에 이와 유사한 자산이나 권리를 양도하거나 대여하고 그 대가로 받는 금품

▣ 소득세법 시행령(2010. 2. 18. 대통령령 제22034호로 개정되기 전의 것)

Article 29 (Scope of Business)

Except as otherwise provided for in this Decree, the scope of businesses under the subparagraphs of Article 19 of the Act shall be based on the Korea Standard Industrial Classification: Provided, That this shall not apply to cases prescribed by Ordinance of the Ministry of Strategy and

▣ 한국표준산업분류(2000. 1. 7. 통계청 고시 제2000-1호로 개정된 것)

65999 Other financial business

The term "other financial activities" means the industrial activities that are engaged in other financial activities.

For example, the time limit for such event shall be

��음악저작권 관리 ��비금융 무형재산권 구매 및 대여

��금융지주회사 ��저작권 및 특허권 구매 및 대여

Foreign Affairs and Trades

��특허권, 저작권 등의 중개(75992)

▣ 한국표준산업분류(2007. 12. 28. 통계청 고시 제2007-53호로 개정된 것)

69400 Lease of intangible property rights

It means an industrial activity that owns intangible property rights, such as patent rights, trademark rights, mineral exploration rights, brands, etc. and gives a third party the right to use, and receives royalties, such as royalties.

For example, the Board of Audit and Inspection

��특허권 임대 ��상표권 임대

��브랜드사용권 임대 ��기술사용권 임대. (끝)