Cho High-201-Seoul Government-1754 (2012.06.08)

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

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 the entrusted enterprise has a department exclusively in charge of re-entrusted research and development, shall be eligible for tax credit

Tax credit for research and human resources development expenses under Article 10 of the Restriction of Special Taxation Act

2012Guhap30219 Revocation of Disposition of Imposing Corporate Tax

△△ Financial Investment Company

○○ Head of tax office

April 30, 2013

June 14, 2013

1. The Defendant’s disposition of imposition of corporate tax of KRW 743,29,370 on March 7, 201 and April 1, 2008 against the Plaintiff was revoked on March 31, 2009.

2. The costs of lawsuit are assessed against the defendant

Cheong-gu Office

As set forth in the text.

1. Grounds for the disposition

A. The plaintiff (Seoul Metropolitan Government Dolsung Securities Co., Ltd.) entered into a contract for the development of Dolsung Securities System with LGNS Co., Ltd. (hereinafter referred to as "the entrusted company of this case") on July 1, 2008, which is engaged in financial investment business under the "Financial Investment Services and Capital Markets Act" (hereinafter referred to as "the entrustment contract of this case"). The plaintiff 15,137,097,30 won in accordance with the entrustment contract of this case (hereinafter referred to as "the research and development expenses of this case"), "208, 208, 1, 200, 208, 208, 200, 30 won in the first 40, 300, 30 won in the research and development expenses of this case (hereinafter referred to as "the research and development expenses of this case"), which is subject to the tax credit of 15,137,297,300 won in the second 25,205,25,265, etc.

D. The Plaintiff filed a request for adjudication on May 1, 201, and the Tax Tribunal rendered a request for adjudication on June 11, 2012, on the ground that it is reasonable to recognize expenses re-entrusted to a research institute or a business having a department in charge of research and development among research and development expenses re-entrusted to another business on another business entity on June 11, 201 as the subject of the tax credit for research and development expenses, the imposition of KRW 4,271f50,250, which the Plaintiff paid to the Plaintiff on March 7, 2011, the disposition of imposition of KRW 208, April 1, 201, the corporate tax belonging to the business year 31, 209, the corporate tax belonging to the Plaintiff on March 31, 2009, and KRW 4,271,604 (9,106,572,604) paid by the Plaintiff to the entrusted business entity in charge of research and development or business-affiliated research institutes (7,252,414,66).

E. On June 27, 2012, the Defendant refunded KRW 3,527,750,890 of the corporate tax attributed to the business year on March 31, 2009, to the Plaintiff on April 1, 2008, in accordance with the purport of the above decision of adjudication (on March 31, 2009, from KRW 4,271,050,260: Refunded KRW 3,527,750,890, after deducting the refunded amount of KRW 3,527,750,890, “B,” the remainder of KRW 743,29,370;

[Ground of recognition] Facts without dispute, entry of evidence Nos. 1, 2, 3, Gap evidence No. 4-1, 2, and 4-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Plaintiff

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 shall be subject to tax credits under Article 10 (1) of the former Restriction of Special Taxation Act, regardless of whether the enterprise has a department exclusively in charge

(2) Defendant

(A) First of all, it was not revealed whether the costs for the entrustment of research and development activities alleged by the Plaintiff were used. Furthermore, the interpretation of Article 9(5) of the Restriction of Special Taxation Act should be recognized as 'newness' and 's advancedness', which are the requirements for patents, in order to constitute a research opening, and the establishment of a computer system cannot be deemed as meeting these requirements. (B) Next, the Restriction of Special Taxation Act separates the entrustment and re-entrustment from Article 10(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 213037 of Feb. 4, 2009), Article 9(2) and [Attachment 6] subparagraph 1(b) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 213037 of Feb. 4, 2009), and Article 9(2) [Attachment 6] of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 2150 of the Restriction of Special Taxation Act).

B. Relevant statutes

It is as shown in the attached Form.

C Judgment

(1) Whether research and development constitutes "research and development"

Article 9 (5) of the Restriction of Special Taxation Act provides that "Research and Development is activities to achieve scientific or technical progress and to develop a new service and service delivery system." As seen in the background of the above disposition, the service entrusted by the Plaintiff is to build a systematic and comprehensive system to achieve the optimal and efficient operation of information and communications technology, and thus, it is not difficult to regard it as research and development." Meanwhile, although the term "the advancement of the above provision or "new" is included in the term "the research and development", it is not for the purpose of acquiring a patent, it cannot be interpreted that research and development should meet the "newness" and "the authenticity of the patent requirements" to fall under the research and development project as alleged by the Defendant, and whether it is not subject to tax credit if re-entrusted.

"The principle of no taxation without law, or the requirements for tax exemption or tax exemption, and the interpretation of tax laws is not allowed to be interpreted in accordance with the text of the law, unless there are special circumstances (see Supreme Court Decision 2002Du621, May 27, 2004). Article 10(1) of the former Act on the Restrictions on Taxation, and Article 9(2) and [Attachment 6] subparagraph 1(b) of the former Enforcement Decree of the Restriction of Special Taxation Act only provides for expenses for the "entrustment of technology development services to a domestic or foreign research institute or a dedicated department," and there is no provision for the tax credit of the truster who is the other dedicated department, depending on where the above Acts and subordinate statutes are consigned or owned by the dedicated department of the trustee company." In particular, according to the above provision, unlike the interpretation of the Acts and subordinate statutes, it is difficult to expect that there is any change between the trustee and the dedicated department or the trustee of the research and development, as stated in the text of the statutes in this case.

The legislative intent of Article 10(1) of the former Restriction of Special Taxation Act is to promote research and development by granting more tax credits to taxpayers on investment in research and development expenses (see Supreme Court Decision 2000Du3115, Jan. 22, 2002). Since large-scale computer development services cannot depend on human resources and technology of a single company as a convergence technology, it is inevitable to entrust part of computer development services to another company, and the process of amendment of the Act and subordinate statutes of this case cannot be seen as supporting the interpretation of the defendant's assertion logical and inevitable. In conclusion, as long as the plaintiff entrusts the research development services to the entrusted company holding the exclusive department in accordance with the language and text of the applicable Act and subordinate statutes of this case, it is reasonable to deem that the contract was re-entrusted, regardless of whether the department exclusively in charge of the re-entrusted company exists, the expenses therefrom still fall under tax credits (On the other hand, Seoul High Court Decision 2010Nu25635, which the defendant cited, does not affect the interpretation of this case).

(3) Sub-decisions

Therefore, the instant disposition that the instant trustee did not receive a tax credit for research and development expenses under Article 10 of the former Restriction of Special Taxation Act is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.