2017 Gohap80264 Demanding cancellation of a disposition, etc. imposing customs duties

A Stock Company

Attorney Park Jong-hee, Counsel for the plaintiff-appellant-appellee

Head of Seoul Customs Office

Law Firm Adoz., Counsel for the plaintiff-appellant

Attorney Gangnam-gu et al., Counsel for the plaintiff

October 18, 2018

January 10, 2019

1. The Defendant’s imposition of each duty, value-added tax, individual consumption tax, education tax, and additional tax as stated in [Attachment 1] Nos. 1, 2, 3, and 6 against the Plaintiff shall be revoked.

2. All remaining claims of the Plaintiff are dismissed.

3. One-fourth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. The Defendant’s disposition of imposition of KRW 5,935,405,406,50, total amount of KRW 2,265,956,360, total amount of value-added tax, total of KRW 1,341,14,010, total of education tax, total of KRW 402,334,210, total of KRW 1,154,714, and total of KRW 305, total of KRW 1,154,714, and total of KRW 305, each duty imposed by the Defendant against the Plaintiff (attached Form 1) is revoked.

2. The Defendant’s disposition rejecting the issuance of revised import tax invoices for KRW 1,803,88,914,630 of the value-added tax imposed on the Plaintiff on September 12, 2016 is revoked. The Defendant’s disposition rejecting the issuance of revised import tax invoices for KRW 1,803,803,835,778 of the value-added tax imposed on the Plaintiff on September 12, 2016 is revoked.

1. Details of the disposition;

A. The plaintiff's status

On December 12, 1997, the Plaintiff, a Sweden Corporation B (hereinafter referred to as the “Sweden”), is a local subsidiary of the Republic of Korea established with investment of 100% by the Plaintiff, and sells C motor vehicles and related parts to the domestic sear.

(b) Adjustment of the supply contract and transfer price of goods;

Areas subject to Restriction on Perusal by Relevant Acts and subordinate statutes

(c) Requests for correction related to the fixed amount of transfer prices and refund of the tax amount;

1) The Plaintiff filed an import declaration on imported goods at the transfer price in the fiscal year 2009 and 2010. On March 31, 2010 and July 12, 201, the Plaintiff reported and paid customs duties, etc. by adding the ex post facto transmission amount to the customs collector’s dutiable value of imported goods.

2) On September 30, 201, the Plaintiff filed a claim with the head of Suwon Customs Office for rectification to the effect that the amount of ex post facto transmission constitutes adjustment of income not included in the taxable price, but the actual amount of imported goods. The head of Suwon Customs Office refunded the full amount of the tax paid after post payment paid by the Plaintiff four times from December 1, 201 to June 20, 201.

3) The Plaintiff filed an import declaration on the dutiable value of imported goods from 2011 to 2014 at the transfer price, and did not file a revised declaration and payment of customs duties, etc. to add the amount of ex post facto transmission to the dutiable value of imported goods.

(d) payment of global marketing contracts and fees;

Areas subject to Restriction on Access and Duplication by Relevant Acts and subordinate statutes

(e) Disposition of imposition, such as customs;

Areas subject to Restriction on Access and Duplication by Relevant Acts and subordinate statutes

2. Whether the disposition is lawful;

A. The parties' assertion

1) Whether the dutiable value of the transferred price of the issue is included

With respect to the amount transferred by the Plaintiff to the head office, the Defendant asserts that the amount should be added to the dutiable value of the imported goods of this case for the benefit of ex post facto reversion as prescribed in Article 30(1)5 of the Customs Act. Accordingly, the Plaintiff asserts that the amount of the transferred price adjustment for the purpose of the adjustment of profit and loss, which is not directly related to the imported goods, cannot be included in the dutiable value because it does not constitute the profit of ex post facto reversion, and the Defendant did not add the amount of the transferred price adjustment separately from objective and quantitative data.

2) Whether the taxation disposition on the issue transfer price adjustment violates the principle of trust and good faith

The Plaintiff asserts that each of the instant dispositions by the Defendant, which was reversed despite the authoritative interpretation of the Korea Customs Service in 2011 and the subsequent 2009, 2010-year ex post facto remittance-related customs duties, etc., are in violation of the principle of trust and good faith or non-taxation practices. In this regard, the Defendant did not express a public opinion as to whether the amount of the transfer price adjustment at issue constitutes an additional element under Article 30(1)5 of the Customs Act, and the Defendant confirmed that there was an error in the interpretation of the statutes in the refund disposition by the head of the Suwon Customs Office in accordance with the provisions of the relevant statutes and confirmed that there was an error in the interpretation of the statutes, and each

3) Whether the pertinent international marketing fee includes the dutiable value of the international marketing fee

Regarding the issue of international marketing costs, the Defendant primarily asserts that the price for the imported goods of this case is the actual payment under Article 30(2) of the Customs Act, or the price for the use of a right under Article 30(1)4 of the Customs Act, as the price for the imported goods of this case, may be included in the dutiable value of the imported goods of this case. Accordingly, the Plaintiff asserted that the pertinent international marketing costs cannot be deemed the actual payment amount of the imported goods of this case or the fee for the use of a right, as the compensation for the actual cost for the service costs directly used for the global marketing activities of the head office, and that there was an error of law that belongs to the total price for the imported goods of this case, even though the royalties

4) Whether there exist grounds for exemption from additional duties

The Plaintiff asserts that, even if the transfer price adjustment amount or the key international marketing cost is included in the dutiable value of the imported goods of this case, there exists justifiable reason that the Plaintiff did not add it to the dutiable value, the Plaintiff’s additional tax should be exempted. Accordingly, the Defendant asserts that the imposition of additional tax is lawful, since it is merely limited to the land of the Plaintiff’s negligence, and it is difficult to view that there is reasonable ground to believe that the Plaintiff did not

5) Whether grounds for issuing amended import tax invoices exist

The Plaintiff asserts that the disposition rejecting the issuance of this case is unlawful since the revised import tax invoice on value-added tax imposed in relation to the transfer price adjustment amount should be issued if the transfer price adjustment amount was determined as the profit after the follow-up reversion (attached Form 1) and each disposition listed in 1, 2, 4, and 6 is legitimate. Accordingly, the Defendant asserts that the disposition rejecting the issuance of this case was unlawful since there is a possibility that the Plaintiff could perform the duty of due return and payment through the prior examination system, etc. under the Customs Act. Accordingly, it cannot be deemed that there is no cause attributable to the Plaintiff as to whether the transfer price adjustment amount is included in the transfer price adjustment amount under the Customs Act

B. Relevant statutes

[Attachment 2] The entry in the relevant statutes is as follows.

C. Whether the dutiable value of the transferred price is included

Areas subject to Restriction on Access and Duplication by Relevant Acts and subordinate statutes

2) Determination

A) Basic Law:

Article 30 (1) of the Customs Act provides that "the dutiable value of imported goods shall be the transaction value adjusted by adding the following amounts to the price actually paid or payable by a buyer for the goods sold for export to Korea: Provided, That the addition of the following amounts shall be based on objective and quantity data, and if there is no such data, the dutiable value shall be determined by the methods provided for in Articles 31 through 35 without determining the dutiable value by the methods provided for in this Article." Article 30 (5) provides that "the amount which is directly or indirectly reverted to a seller from among the proceeds accruing from the resale, disposal, or use of the imported goods after their importation (hereinafter referred to as "the amount which is reverted later")" in Article 1 (1) of the General Agreement on the Implementation of Article VII of the Customs Duties and Trade 194 (hereinafter referred to as the "WTO Customs Valuation Agreement") provides that "the customs value of the imported goods shall be the transaction value, i.e., the price actually paid or payable for the goods sold for export to the importing country, and the price of the goods shall be adjusted pursuant to Article 8 (1).

The purpose of the relevant provision is to calculate the dutiable value of imported goods in addition to the amount of the revenue accruing from the sale of the imported goods itself is not only the amount reverted to the seller, but also the amount reverted to the seller, among the revenue from the sale of the goods made from processing or using the imported goods as raw materials, in cases where the amount reverted to the seller, among the revenue from the sale of the goods made from processing or using the imported goods, has the nature of goods as consideration for imported goods (see Supreme Court Decision 2010Du14565, Dec. 11, 2012).

On the other hand, the ex post facto reversion profit refers to the sales proceeds, rents, processing fees, etc. obtained from the sale, use, etc. of the relevant imported goods, and the remittance for the purpose of coordinating profits and losses not directly related to the imported goods, etc. does not constitute the profit from post facto reversion (Article 10(1) and (2) of the Notice on

Ultimately, for a certain amount to be included in the customs value as an ex post facto reversion profit under Article 30(1)5 of the Customs Act, it should be an amount directly related to the imported goods out of the sales proceeds obtained from the sale, etc. of imported goods after importation, and can be calculated on the basis of objective and numerical data.

B) Whether the amount of the pre-sale price adjustment at issue constitutes a benefit of post-Reversion

Comprehensively taking account of the facts acknowledged earlier and the following circumstances acknowledged by the evidence, it is difficult to view the key amount of the pre-sale price adjustment as constituting an ex post facto reversion profit, which is an additional element of dutiable value under Article 30 subparag. 5

① Internal tax aims to prevent a taxpayer from intentionally transferring income to a foreign country and to fairly distribute taxable income without heavy taxation while customs duties are intended to identify the objective value of each goods internationally traded at the time of importation and impose customs duties consistent with the value of the goods at the time of importation. Therefore, in essence, in cases where the level of profit realized during a taxable period exceeds the arm’s length price level, whether the transferred price adjustment amount, which is an additional element, is included in the dutiable value of customs duties, should be determined separately depending on the actual cause and nature of the transfer price adjustment amount. Furthermore, even if the amount of profit after-sale belongs to the seller directly or indirectly, even if the amount transferred to the head office falls under the post-sale profit, the amount received from the head office cannot be deemed as such amount, and thus, even if the transfer price adjustment amount arising from the same price adjustment policy is the same as the substance of the goods, it may be likely to reflect on the balance of taxation by determining whether the transfer price adjustment amount constitutes the dutiable value under the Customs Act, not the amount of profit after the transfer price adjustment.

Areas subject to Restriction on Access and Duplication by Relevant Acts and subordinate statutes

④ Meanwhile, in light of the fact that the Defendant indicated the post-delivery amount in the instant contract for the supply of the goods as the “privice” and used the “pre-transfer of imported goods” in the foreign exchange code distinguishings the grounds for payment at the time of the transfer of the fixed amount for the purchase of goods at issue, the Defendant asserts that the pre-transfer price adjustment amount has the nature of the additionally paid imported goods as the price for the imported goods.

However, pursuant to Article 14(2) of the Framework Act on National Taxes, the provisions on the calculation of tax bases in tax-related Acts ought to be applied to the substance regardless of the name or form of income, profit, property, act or transaction (see Supreme Court Decision 2015Du5209, Aug. 30, 2016).

According to the statement in Gap evidence No. 1, it is true that the above expression was used in the goods supply contract in this case, but, on the other hand, in case of losses which fall short of the target operating profit, it is used for the expression "refics of the contracting parties" in the case of losses which occur below the target operating profit, and 9) If there are no circumstances to deem that the contracting parties intentionally expressed differently in order to distinguish the nature of both parties, the nature of the transfer price adjustment amount corresponding to each other is more consistent with the intent of the parties, not to interpret it differently through the expression, but to interpret it uniformly. In light of the reasons and nature of the transfer price adjustment amount, it is reasonable to view that the above expression merely means that the plaintiff would pay the transfer price adjustment amount for the imported goods purchased at the head office when the plaintiff purchased the imported goods in this case after purchasing the goods in this case, if there is any profit in excess of the target operating profit in the process of sales, it does not affect the judgment as to whether the causes and nature of the transfer price adjustment amount at issue.

(5) Furthermore, an amount directly related to individual imported goods may be deemed a profit from the ex post facto reversion on the basis of objective and numerical data.

As seen earlier, as a result, various factors, other than the increase and decrease in sales volume, are combined. The difference between the target operating profit and actual operating profit, rather than the sales volume compared to the target sales volume. Nevertheless, on the premise that the total sales amount prior to the issue was caused only by the increase in total sales volume, the Defendant added the key net sales amount to the taxable value by collectively allocating the sales amount to the vehicles of five to six classes with a large number of net sales volume compared to the target, based on the difference in the sales volume, based on the premise that the total sales amount prior to the issue was increased due to the increase in total sales volume. This cannot be deemed as adding only the amount directly related to the imported goods among the sales amount obtained from the sale, etc. of the imported goods of this case to the taxable value.

C) Sub-determination

(1) Ultimately, the key issue is that it cannot be calculated on the basis of the amount directly related to the imported goods or objective and quantitative data among the sales proceeds obtained from the sale of imported goods after importation. Thus, this part of the Plaintiff’s assertion is reasonable, and it is unlawful on the premise that the key issue in each of the instant dispositions falls under the ex post facto reversion interest under Article 30(1)5 of the Customs Act.

(2) Meanwhile, insofar as the issues at issue are determined that the amount of the transfer price adjustment does not constitute an interest on the post-Reversion, the Plaintiff’s assertion of violation of the principle of trust and good faith and the assertion of exemption of additional tax on the amount of the transfer price adjustment, which is premised on the premise that the transfer price adjustment amount is determined as the

(d) Whether international marketing fees are included in the dutiable value;

Areas subject to Restriction on Access and Duplication by Relevant Acts and subordinate statutes

2) Determination

A) Whether the issue international marketing fee is included in the actual amount paid

(1) The main sentence of Article 30(1) of the Customs Act provides that "the dutiable value of imported goods shall be the transaction price adjusted by adding up the following amounts to the price actually paid or to be paid by a buyer for the goods sold for export to Korea." The main sentence of Article 30(2) provides that "the actual payment price which serves as the basis for calculating the dutiable value of the imported goods shall include the price of the relevant imported goods by a buyer against a seller's obligations, the price of a seller's obligations owed by a buyer and other indirect payments." Further, Article 20(6) of the Enforcement Decree of the Customs Act provides that "other indirect payments under the main sentence of Article 30(2) of the Customs Act shall include the amount which is included in the "other indirect payments", "the price of the imported goods paid or to be paid by a third person at the request of a seller (Article 1)", "the price of the goods paid or to be paid by a seller under the terms and conditions of transaction for the relevant imported goods (Article 2)", "the price of Annex 1" is also paid to the WTO.

Considering the fact that the customs laws and regulations on the amount of indirect payments include the amount actually paid as the transaction terms of imported goods in the form of the provision of the customs laws and regulations, the WTO Customs Valuation Agreement, and the Notes, the customs laws and regulations on the amount of indirect payments can be seen as an example provision, so eventually, if the "cost to be borne by the seller" is the "actual relation between imported goods and the price to be paid by the buyer" according to the transaction terms of the imported goods, such amount may be included in the amount of indirect payments.

(2) In light of the following circumstances, it is reasonable to view that the pertinent international marketing fee is an indirect payment included in the actual payment amount and included in the dutiable value of the imported goods of this case, by comprehensively taking into account the facts acknowledged as above and the purport of the entire arguments.

① Although the key international marketing cost was paid according to a contract entered into between the Plaintiff and Sweden subsidiaries, the content of the contract is the cost used to continuously disclose to the general public the names, vehicle designs, brand values, etc. of the trademark owned by the headquarters to the general public. Such activity is, in principle, the nature of the trademark right holder and the seller, and the head office, which is the owner of the trademark right, is high brand value, such as the trademark right owned by the head office due to the key international marketing cost. If the trademark right owned by the head office is higher due to the key international marketing cost, there is reasonable reason for the owner of the trademark right to additionally demand the Plaintiff, the trademark user, the head

② International marketing activities under the instant international marketing agreement are both the head office and Sweden subsidiaries, and Sweden subsidiaries shall perform international marketing activities in accordance with the guidelines of the head office.

③ The fee to be paid by the Plaintiff under the instant international marketing agreement shall be calculated by multiplying the expenses distributed as marketing management expenses for marketing area by the number of vehicles sold by the Plaintiff among the expenses actually incurred in international marketing activities of Sweden subsidiaries for the global market by the number of vehicles sold in the marketing area of Sweden subsidiaries. The fee calculated as above shall be paid to the head office each quarter at the request of the head office, the seller of the instant imported goods, as the head office.

④ In the event that the Plaintiff, as a subsidiary controlled by the headquarters, did not pay the pertinent international marketing fee, the Plaintiff appears to be unable to import and sell the goods bearing C trademark. As such, it is recognized that the Plaintiff was paid to the head office under the terms and conditions of the instant imported goods

⑤ In light of the content of the instant international marketing agreement and all of the Plaintiff, head office, and Sweden subsidiaries, the instant international marketing agreement was concluded between the Plaintiff and Sweden subsidiaries, but its form was agreed to pay the international marketing activity cost to increase brand value, such as the trademark right of the head office to be borne by the seller, the Plaintiff, the buyer, as the price for the import of the instant imported goods.

B) Whether the issue of international marketing fee constitutes royalty (family judgment)

Even if the instant international marketing agreement was concluded between the Plaintiff and Sweden subsidiaries, the fact that the head office received the pertinent international marketing costs is merely a method of paying the costs under the said agreement, and thus, cannot be deemed as an actual payment paid in return for the transfer of the instant imported goods, the key international marketing costs are the royalty for the use of trademark rights, which is added and adjusted to the dutiable value of the instant imported goods, on the following grounds.

(1) Article 30(1)4 of the Customs Act provides for "the price for using the trademark right and similar rights" as one of the price actually paid or payable by a buyer for goods sold to be exported to Korea when determining the dutiable value of imported goods.

The substance over form principle that the content of income subject to taxation or transaction ought to be grasped according to the substance, not the nominal name, is the basic principle for the imposition and collection of taxes. Thus, the same applies to the interpretation of the Customs Act that does not explicitly provide for such principle. Therefore, whether the amount paid by a buyer to a trademark right constitutes the cost of using a trademark right, which serves as the element for the adjustment of the addition of dutiable value of imported goods, ought to be determined depending on whether the substance has the nature of the consideration for using the trademark right, not the nominal name of the amount paid (see Supreme Court Decisions 2015Du52098, Aug. 30, 2016; 2017Du4879, Oct. 12, 2017).

As seen earlier, the issue of international marketing fees paid by the Plaintiff to the headquarters when importing automobile-related parts bearing the trademark “C” is expenses used for continuously exposing to the public the name of the trademark owned by the headquarters, vehicle design, brand value, etc. ② Such activities, in principle, are in the nature of performing the headquarters as the trademark right holder, and the international marketing contract of this case also provides that the headquarters and Sweden subsidiaries shall be in charge of marketing services extending over the whole world; ③ trademark rights owned by the headquarters and design rights are high due to the key international marketing costs; ③ the trademark right owned by the headquarters, design rights are high; ④ the headquarters as the trademark right holder and the Plaintiff as the user; ④ the international marketing contract of this case was concluded with the headquarters as the headquarters, not the trademark right holder; ④ the headquarters as the owner of the trademark right holder, and ④ the price for the use of the international marketing contract of this case was concluded with the headquarters as the headquarters, but the Sweden subsidiaries subsidiaries should carry out international marketing activities together with the headquarters in accordance with the guidelines of the headquarters; the price paid directly to the headquarters as the trademark right holder.

(2) Article 19(2) of the Enforcement Decree of the Customs Act provides that in order to add the "price using a trademark right" to the actual payment price, the "price using the trademark right" should be an amount related to the imported goods and paid by the buyer according to the terms and

According to the facts and the evidence found earlier, ① as the instant imported goods are attached to the instant imported goods, the relationship between the pertinent international marketing cost and the instant imported goods is satisfied. ② The Plaintiff, a subsidiary controlled by its headquarters, could not import and sell the goods bearing the C trademark if the Plaintiff did not pay the key international marketing cost. Thus, the key international marketing cost constitutes an amount that is paid according to the terms and conditions of the instant imported goods.

(3) Furthermore, Article 30(1) of the Customs Act provides that the royalty shall be based on objective and quantity data as a requirement for adding the royalty to the dutiable value. As seen earlier, the key international marketing cost is calculated by multiplying the expenses actually incurred in conducting international marketing activities for the global market by the number of vehicles sold by the Plaintiff by the number of vehicles sold by the Plaintiff from the marketing area of Sweden subsidiaries by the number of vehicles sold by Sweden subsidiaries, and such cost is calculated based on objective and quantity data.

3) Sub-decisions

A) The pertinent international marketing fee is included in the amount of indirect payment, and thus, it is lawful to include the pertinent international marketing fee in the taxable price of the instant imported goods.

B) Furthermore, there is no circumstance to find out that the Plaintiff could not be found to have justifiable grounds for failure to perform his/her duty not added to the dutiable value of the imported goods of this case, and thus, the imposition of additional tax related thereto is lawful.

C) Ultimately, the Plaintiff’s argument relating to the international marketing cost is without merit.

E. Centrality

1) As seen earlier, the first and fifth dispositions of the instant dispositions include only the fixed price set prior to the issues, and only the international marketing fees for the issues as the grounds for each disposition, and the second, third, and sixth dispositions are both the adjusted price and the key international marketing expenses prior to the issues.

Therefore, the part seeking the revocation of the first disposition among the plaintiff's claim grounds of this case seeking the revocation of each disposition of this case is well-grounded, and all the part seeking the revocation of the second disposition of this case is without merit. The part seeking the revocation of the second, third, and sixth disposition is with merit, and the part seeking the revocation of the second, and third, and six major international marketing costs are without merit.

2) Determination as to the legality of a disposition in a lawsuit seeking revocation of a tax disposition is based on whether it exceeds a legitimate amount of tax. The parties concerned may submit objective tax bases and materials supporting such tax amount until the closing of arguments in the fact-finding court is closed. When computing the legitimate amount of tax to be imposed lawfully based on such materials, only the portion exceeding the reasonable amount of tax should be revoked, but in other cases, the entire amount of the tax disposition should be revoked (see, e.g., Supreme Court Decisions 94Nu13527, Apr. 28, 1995; 2015Du622, Sept. 10, 2015).

In the case of customs duties, the taxable object and the taxable unit vary depending on each case of import declaration, for which the person liable for duty payment becomes final and conclusive each time the import declaration of imported goods is filed. The data submitted not later than the closing date of the argument in this case alone cannot be calculated by the legitimate tax amount per each case of import declaration, excluding the amount of price adjustment on the issue transfer date from the dutiable value (only the total tax amount can be calculated by each date of the disposition). Ultimately, the two, three, and six dispositions in each of the dispositions in this case against the Plaintiff by the Defendant are all revoked.

(3) On the other hand, the claim for revocation of the instant refusal disposition is a preliminary claim for revocation of the first, second, third, and sixth dispositions among the dispositions of this case, and it does not proceed further to the extent that the main claim is accepted.

3. Conclusion

Then, (1) All of the claims for revocation of each of the dispositions in this case are justified. (2) 4, 5, i.e., [Attachment 1] - [Attachment 1] - Nos. 1 (No. 31, 2015), 2 (No. 1, 2015), 3 (No. 24, 2015), and 6 (No. 28, 2016) are sought revocation of each of the dispositions in this case. (2) 4, 5, i.e., [Attachment 1] 4 (No. 20, Jan. 2016), 5 (No. 2016, Jan. 28, 2016) are dismissed. It is so decided as per Disposition.

Judge Park Jong-yang

Judges Kim Jong-soo

Maximum Judge

1) Although the Plaintiff does not explicitly indicate in the purport of the claim that the claim under paragraph (2) explicitly stated that the claim is a preliminary claim for revocation of each tax disposition stated in 1, 2, 3, and 6 of the tax disposition details Nos. 1, 2, 3, and 6, in the grounds of the claim, the Plaintiff clearly states that the claim under paragraph (2) of the same Article (attached Form 1) is subject to the revocation condition that the revocation claim for each tax disposition (which relate to the transferred price adjustment amount) will be accepted (see, e.g., Plaintiff’s preparatory document as of July 4, 2018), and Paragraph (2) of the claim under paragraph (1) shall be determined by considering the details of the tax disposition Nos. 1, 2, 3, and 6 of the claim under paragraph (1) as a preliminary consolidation claim for revocation of each tax disposition.

3) The portion with a yellow negative sign shall be the remaining tax amount cancelled and remaining according to the decision of the Tax Tribunal.

9) Article 2(4) of the instant goods supply contract

In the event of any Excess, Distributor(원고) shall pay such Excess to Assembler(본사) as an additional purchase price for Vehicles and Parts purchased from Assembler or Assembler's Affiliates during the calendar year to which the Excess relates. In the event of any Shortfall, Assembler shall pay such Shortfall to Distributor as a rebate of the transfer prices paid for Vehicles and Parts purchased from Assembler or Assembler's Affiliates during the calendar year to which the Shortfall relates.

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