Seoul Administrative Court-2013-Gu -31257 ( October 13, 2016)

Seocho 201Ch 1706 (26. 2013.09.26), 2012Ch 4025 (25. 2013.09.25)

Since an exclusive license is granted for exclusive use and the technology fee is paid, the receipt date of other income shall be the date of such payment.

A patent or exclusive license is not transferred, but it is merely a case where the technology related to nanotechnology is exclusively used for a certain period of time by establishing an exclusive license for a certain period of time, and the technology fee is paid in return, and thus the date of payment is the receipt date of other income.

Special cases of gift tax on overseas donation Article 21 of the Adjustment of International Taxes Act

Scope of transfer income under Article 118-2 of the former Income Tax Act

2016Nu498 Revocation of Disposition of Imposing capital gains tax

Park AA

BB Director of the Tax Office

Seoul Administrative Court Decision 2013Guhap31257 decided October 13, 2016

2017.03.08

2017.04.26

1. The plaintiff's appeal and the changed plaintiff's claim that are exchanged in the court room are all dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Revocation of a judgment of the first instance;

2. As to the Plaintiff:

(a) impose a gift tax of KRW 0,000,000 on May 25, 2012;

B. Disposition imposing KRW 00,000,000 on the gift tax for the year 2008, May 25, 2012;

(c) impose a gift tax of KRW 00,000,000 on May 25, 2012;

(d) impose a gift tax of KRW 00,000,000 on May 25, 2012, 2008;

E. Disposition imposing KRW 0,00,000 on the gift tax for the year 2008, May 25, 2012;

(f) impose a gift tax of KRW 0,000,000 on May 25, 2012;

G. Disposition imposing KRW 0,00,000 on the gift tax for the year 2008, May 25, 2012;

(h) impose a gift tax of KRW 0,000,000 on May 25, 2012;

(i) impose a gift tax of KRW 0,000,000 on May 25, 2012;

(j) impose a gift tax of KRW 0,000,000 on May 25, 2012;

(k) impose a gift tax of KRW 0,000,000 on May 25, 2012;

(l) impose a gift tax of KRW 0,000,000 on May 25, 2012;

(m) impose a gift tax of KRW 0,000,000 on May 25, 2012;

(n) impose a gift tax of KRW 0,000,000 on May 25, 2012;

(o) a disposition imposing a gift tax of KRW 000,000,000 on June 1, 2012;

(p) a disposition imposing a gift tax of KRW 000,00,000 on June 1, 2012;

(q) a disposition imposing a gift tax of KRW 000,00,000 on June 1, 2012;

(r) a disposition imposing a gift tax of KRW 00,00,000 on June 1, 2012;

(s) Disposition of imposition of KRW 00,00,000 on October 4, 2016 (the Plaintiff requested from the first instance court to revoke the disposition of KRW 00,000,000 on June 1, 2012, which reverts to the portion of the gift tax for the year 2008 (the Plaintiff sought the revocation of the disposition of KRW 00,000,000 on June 1, 2012). After the judgment of the first instance court, the head of the BC Tax Office revoked the said disposition on August 10, 2016 on the ground that the non-defendant head of the tax office, who has jurisdiction over the Plaintiff’s domicile, was subject to the said disposition of imposition, and the Defendant sought the revocation of the disposition of imposition of KRW 00,000,000 on the gift tax for the year 208 again on October 4, 2016, to exchange KRW 00,000 on October 4, 2016).

Each cancellation shall be revoked.

3. As to the Plaintiff:

(a) a disposition imposing a gift tax of KRW 000,00,000 on January 3, 201, 2006;

(b) a disposition imposing KRW 0,000,000,000 on the gift tax of 2006 on January 3, 201;

(c) impose a gift tax of KRW 00,000,000 on January 3, 201;

(d) a disposition imposing capital gains tax of KRW 000,000,000 for the portion reverted to year 2006 on January 3, 2011;

E. Disposition imposing capital gains tax of KRW 000,000,000 for the portion attributable to year 2007, January 3, 2011;

(f) a disposition imposing global income tax of KRW 000,000,000 on January 3, 201, 2005;

(g) a disposition imposing global income tax of KRW 000,000,000 on January 3, 201, 2006;

(h) a disposition imposing global income tax of KRW 000,000,000 on January 3, 201, 2007;

(i) a disposition imposing global income tax of KRW 000,000,000 on January 3, 201, 2008;

(j) A disposition imposing global income tax of KRW 000,000,000 on January 3, 201, 2009

Each cancellation shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation on this case is as follows: Gap's evidence submitted additionally at the trial, which is insufficient to recognize the plaintiff's assertion, shall be excluded from each description of Gap's evidence (including each number; hereinafter the same shall apply) which is sufficient to recognize the plaintiff's assertion; the court's judgment shall be dismissed or added in part of the judgment of the court of first instance as Paragraph 2; and the plaintiff's new argument shall be added as stated in the reasoning of the judgment of the court of first instance, except for addition of the judgment on the plaintiff's new argument at the trial as Paragraph 3, and therefore, it shall be cited as it is in accordance with Article 8 (2)

2. Parts to be removed or added;

Then, following the 7th page of the 4th imposition, “after that, with respect to the imposition of KRW 0,00,000,000, for the reason that the Plaintiff donated MPM stocks to VV who is a non-resident, the head of BC tax office having jurisdiction over the Plaintiff’s domicile and the head of BC tax office having jurisdiction over the Plaintiff’s final domicile was found to have imposed the said imposition on August 10, 2016, and the said imposition was revoked on August 10, 2016, and the Defendant again issued a disposition of KRW 00,000,000,000, for the gift tax for the year 2008.”

○ 7 Sheet No. 41 and No. 25 of A, "No. 41 and No. 25 of A," shall be added to the 7th page 15 [based grounds for recognition],

The following shall be added:

○○ 7th page “the Plaintiff” added “TT and UU” to “the garlance marking for the successful performance of the above services by TT and UU, instead of the consideration for consulting services provided by TT and UU III.”

○ 11. Part 12 of the 12th page [S] shall add the following:

“In addition, the number of days of stay in Korea and overseas from August 24, 2004 to September 11, 2006, the number of days of stay in Korea and overseas of which the NJ has acquired the permanent residence of Canada by the Plaintiff is 440 days, 311 days, respectively, and the number of days of stay in each country during the said period is as follows:

[Report] The number of days of stay by country from August 24, 2004 to September 11, 2006

(Standards for the country of departure after departure)

The State

The number of stay

The State

The number of stay

Korea

440

China

12

United States

8

United Kingdom

11

Philippines

78

Indonesia

4

Japan

42

Hong Kong

4

Canada

39

16 81

3

Germany

28

Washington : Singapore

2

Total

751

[....]

○ The last 12th parallel "not submitted" added to the following:

(10) The current status of the establishment and operation of the Plaintiff’s domestic corporation shall be as follows:

[Indication] The plaintiff's domestic establishment and operation status

name of corporation

Opening date of business

Closure

The term of office for representative director;

CC Industry, Inc.

November 30, 1985

December 1, 2009

1985 〜 2006. 6

EE EE Mebacs

FF Stock Company

July 13, 1995

September 30, 2005

1995 〜 2005. 3

III

March 16, 2005

July 1, 2009

(NJJJ-ro Merger)

2005. 3 〜 2008. 11

NJJJJ

June 15, 1997

Continuance

2006. 8. 〜 현재

[....]

○ Heading 13 in part 13 [based on recognition] shall add “Evidence 7, 9, 3 of A” to the part 13.

○ 17. The following shall be added to “Road 5.”

From August 24, 2004 to September 11, 2006, the NJJ stayed 440 days in Korea for the period of 751 days when the Plaintiff acquired the permanent residence of Canada, while Canada only stayed 390,00 days in France. Rather, considering that the number of days of stay in other countries than Canada, such as the United States of America 88 days, the Philippines 78 days, and Japan 42 days, the Plaintiff may be deemed to have served as the basis of his living in Korea other than Canada.

○ 18. The following shall be added: (a) the 111st page of the 111st page " not acquired":

“The Plaintiff” was established by GG, “The State of California at the time of its first establishment,” and “the Plaintiff from around 2007.”

Although Canada and the United States asserted that the place of property management until September 2006 of the Plaintiff is Canada because the income from GG is much larger than that of the U.S. and the place of property management until September 2006, 2006, since Canada and the United States are different from the tax treaty applicable as a separate country, and the currency used is different, and economic life zone is the same. Furthermore, considering the fact that the transfer of GG to the U.S. New said GG from August 24, 2004 to September 11, 2006 is around 2007, the Plaintiff’s economic relation is difficult to be considered as Canada, on the basis of the fact that the Plaintiff transferred the GG to the U.S. New said owner, a corporation of the United States, on the basis of its business activities.

[....]

○ The 15th page “Nos. 15, 20, and 21” is “No. 19, 20, and 21”.

○ To delete from the 10th 19th 14th 'Y' to the 14th 'Y'.

○ Heading 7 of the 20th page [based on recognition] shall add “No. 35 of the A” to the 7th page.

3. Additional determination

A. The plaintiff's assertion

1) The Plaintiff acquired the GG shares on July 7, 2006, not in a quid pro quo relationship with the Plaintiff’s transfer of HH shares to the GG, but in a 0,000 shares shares of the GG shares owned by the Plaintiff were divided into 0,00,000 shares as of October 1, 2005 (1:5,000 shares) and was issued new shares in lieu of the old shares (1:5,00 shares). As such, the Plaintiff received a donation of HH shares of VV’s HH shares in the name of the Plaintiff and VVV’s contribution in kind to receive profits from the existing shareholders, and the imposition of gift tax under Section 2(a)(b) of the claim 2 under the premise that the Plaintiff received profits from the existing shareholders by acquiring the HG shares in the name of the Plaintiff and VV’s shares at a low price.

(2) On May 17, 2007, KRW 0,000 was not reverted to the Plaintiff, but reverted to the trust of Emphye Pock Oscock for the purpose of providing employees with the aforementioned shares. Thus, the imposition disposition of gift tax stated in paragraph 2(c) of the claim on the premise that the said shares belong to the Plaintiff is unlawful, 3) on August 24, 2007, the Plaintiff received an exclusive license of 0,000,000 dollars from 200,000,000,0000,0000,000,0000,000,000,000, 200,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00,00.

B. Determination

1) On the first argument, the first argument: (a) the Plaintiff asserted that he did not receive a donation from the first to the first instance court on or around October 2005 that he did not return HH shares to V; (b) it was difficult to believe that he did not coincide with the contents of Gap evidence Nos. 21 to 23, 26, 35, 36, 38; (b) the Plaintiff submitted evidence Nos. 52 to 58, 66 as evidence consistent with the above argument; (c) it is difficult to believe the contents of the agreement to exchange shares (Evidence No. 23) prepared on or around October 2005; and (d) it is difficult to accept the Plaintiff’s share shares to be accurately stated in the list of shares held by the Plaintiff; and (e) the number of shares held by the Plaintiff on or around 00; and (e) the Plaintiff’s share shares purchased by the Plaintiff on or around 00,000.

2) As to the second assertion, ① the Plaintiff’s new assertion for USD 00 is difficult to accept, as it is consistent with the above argument, USD 59, 60 as evidence, and it is difficult to believe the contents thereof due to uncertainty 50 as well as uncertainty 59 as well as to give the officers of the Plaintiff the right to withhold USD 00,000 for the purpose of Stockholm issuance, ② It is not included in the contents that the Plaintiff would issue 00,000 shares to the trust, ② It is difficult to acknowledge that the Plaintiff would have paid 00,000 shares for 00,0000 shares and paid 00,0000 shares for 200,0000 shares and 70,0000 shares and 70,00,000 shares and 30,00,000 shares and 70,00,000 shares and 7,07,07,07,07,00 shares and shares were offered by the Plaintiff.

On the other hand, Article 21 (1) 7 of the former Income Tax Act lists "mining rights, fishing rights, industrial property rights and industrial information, industrial secrets, trademark rights, business rights (including the right 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 similar assets or rights and money received in return for such transfer or lease as one of other income."

Article 50 (1) of the former Enforcement Decree of the Income Tax Act shall be the following dates: 1. The date of receipt of other income under Article 21 (1) 7 of the Act (excluding other income where assets or rights are leased): The date of settlement of the price, the date of delivery of assets, or the date of use or profit-making: Provided, That where assets are transferred or used or profit-making before the price is settled, but the price is not determined, other income under Article 21 (1) 20 of the Act shall be the date of payment; 2. Other income under Article 21 (1) 20 of the Act: The date of settlement of the relevant business year of the relevant corporation; 3. The date of receipt of other income other than those under subparagraphs 1 and 2:

In full view of the contents of the above facts-related provisions, the plaintiff does not transfer the patent right or exclusive license to MM, but it is merely a fact that the plaintiff created an exclusive license for a certain period to exclusively use nanotechnology-related technologies and received royalties in return for such grant. Thus, "the date of receipt" under Article 50 (1) 3 of the former Enforcement Decree of the Income Tax Act is the date of receipt of other income.

Therefore, the remaining USD 0,00,000 that the Plaintiff received from MM is the receipt date of June 20, 2009, which is the date of receipt of the payment. Therefore, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, including a claim for exchange change in the trial. Among the judgment of the court of first instance, the part of the remaining disposition except for the disposition of imposition of KRW 000,000,000,000 on June 1, 2012, which belongs to the portion of the judgment of the court of first instance is justifiable. Accordingly, the plaintiff's appeal is dismissed, and the plaintiff's claim for exchange change in the trial (the part of the disposition of imposition of KRW 00,000,000 on the gift tax belonging to the year 208 as of October 4, 2016) is dismissed (the part of the disposition of imposition of KRW 20,000,000 on the gift tax belonging to the year 208 as of June 1, 2012 was withdrawn due to the exchange change in the trial and the judgment of the court of first instance as to this part becomes null and void).