Seoul Administrative Court 2013Guhap15040 ( November 15, 2013)

Seocho 2012west 3266 ( January 25, 2013)

Expenses that a trustee entrusted with research and development services re-entrusted part of the services to another business entity shall be eligible for tax credit, regardless of whether it is a dedicated department.

As long as research and development services have been entrusted to an entrusted enterprise holding an exclusive department, other expenses are also subject to the tax credit prescribed by the Special Provision, regardless of whether the exclusive department exclusively in charge of the re-entrusted enterprise exists.

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

2013Nu52843 Revocation of revocation of revocation of corporate tax rectification

AAA Corporation

Head of Yeongdeungpo Tax Office

Seoul Administrative Court Decision 2013Guhap15040 decided November 15, 2013

April 16, 2014

June 25, 2014

1. Revocation of a judgment of the first instance;

2. The Defendant’s rejection of each request for correction against the Plaintiff on April 1, 2008 to March 31, 2009, which was made against the Plaintiff on April 10, 2012, shall be revoked. The rejection of each request for correction against the OOO of corporate tax belonging to the business year from March 31, 2009, from April 1, 2009 to March 31, 2010.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

"A. The plaintiff engaged in financial business entered into a contract with BBS SDR Co., Ltd. (hereinafter referred to as BBS) to entrust the construction of a computer system, such as the next generation system division. Under the above contract, the plaintiff paid OOO in the business year from April 1, 2008 to March 31, 2009, or OOOOO in the business year from April 1 to March 31, 2009, or from March 31, 2010." (b) The plaintiff omitted tax credit for each business year from April 1, 2008 to March 31, 2010 (amended by Act No. 19555, Apr. 1 to March 31, 2009) from March 31, 2009 to April 1 to 31, 2010 (amended by Act No. 976, Apr. 29, 2008 to March 31, 2010).

C. On January 11, 2012, the Plaintiff applied the tax credit for research and human resources development expenses to the Defendant on the said research and development expenses, etc., and requested the Defendant to refund the said research and development expenses by adding the OO members among corporate tax for the business year from April 1, 2008 to March 31, 2009 and the OO members among corporate tax for the business year from April 1, 2009 to March 31, 2010.

D. On April 10, 2012, the Defendant: (a) paid the Plaintiff KRW 00 (additional OO on April 1, 2008; (b) on March 31, 2009, KRW 00 (additional OO on April 1, 2009; (c) on March 31, 2010, only KRW 00 (additional OOO on April 1, 2008; and (d) on March 31, 2010, the Defendant refused a request for correction for the business year from April 1, 2008 to March 31, 2009 for the above research and development expenses on KRW 00 (OOOO) corporate tax for KRW 31 business year from March 1, 2008; and (d)OOOO on March 31, 209 to KRW 31,209 (i.e., KRW 200 (OOOOO).

E. On July 6, 2012, the Plaintiff filed an appeal with the Tax Tribunal for the correction of 1.3 O. 2. O. 1 to 30 O. 2. 3 O. 3 O. 1 to 30 O. 20 O. 3 O. 1 to 30 O. 4 of the Enforcement Decree of the Restriction of Special Taxation Act, each of which was issued by the Defendant for the business year of 208 to 30 O. 20 O. 1 to 30 O. 4 of the research and development expenses entrusted by the Plaintiff to a third party. 200 O. 3 O. 1 to 30 O. 4 of the research and development expenses for each business year of 40 O. 1 to 30 of the research and development expenses for the business year of 209. 3 O. 20 O. 1 to 310 of the Enforcement Decree of the Restriction of Special Taxation Act, each of which was confirmed by the Plaintiff.

2. Whether the instant disposition is lawful

A. The parties’ assertion

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-entrustment and re-entrusted enterprises, is eligible for tax credits under Article 10 (1)

2) Defendant’s assertion

Expenses incurred in re-entrusted research and development shall not be eligible for tax credits. Even if the re-entrusted research and development expenses are eligible for tax credits, the expenses paid to re-entrusted companies that do not have the exclusive department shall not be eligible

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

Article 10(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Act No. 9272, Dec. 26, 2008); Article 10(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21307, Feb. 4, 2009); Article 9(2) [Attachment Table 6] of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21307, Feb. 1, 2009; Presidential Decree No. 20135, Feb. 1, 2009; Presidential Decree No. 20154, Feb. 1, 2009; Presidential Decree No. 20110, Feb. 1, 2009; Presidential Decree No. 201358, Feb. 1, 2008; Presidential Decree No. 22010, Jan. 1, 2017>

3) 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 for investment in research and development expenses (see Supreme Court Decision 2000Du3115, Jan. 22, 2002). In addition, as electronic development services entrusted by the Plaintiff are unable to depend on the human resources and technology of a single company due to the need for convergence technology development, it is inevitable to re-contract part of such services to another company, and the process of amending the Special Provision cannot be deemed to support the same interpretation as the Defendant claims, as long as the Plaintiff entrusted research and development services to the entrusted company holding the exclusive department in accordance with the language and text of the Special Provision, it is reasonable to view that the relevant expenses are also subject to the tax credit stipulated in the Special Provision, regardless of whether the dedicated department exclusively dedicated to the re-entrusted company was established, and thus, the disposition of this case is unlawful on any different premise.

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair with a different conclusion, and it is so decided as per the correction of the plaintiff's appeal.