Cho High-201-Seoul Government-1923 (2012.08)

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, shall

In the case of entrusted research and development, it would be contrary to the tax equity in the case of self-research and development to interpret that it is equivalent to the tax credit cost even if the re-entrusted company does not have the exclusive department, if the entrusted company holds the exclusive department.

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

2012Guhap29509 Revocation of Disposition of Corporate Tax Imposition

2012Guhap31892 (Joint) revocation of disposition of imposing corporate tax

2012Guhap32369(combined) revocation of disposition of imposing corporate tax

2012Guhap32536 (Joint) revocation of disposition of imposing corporate tax

2012Guhap38428 (Joint) revocation of disposition of imposing corporate tax

2012Guhap40834 (Joint) revocation of disposition of imposing corporate tax

1. AA securities company; 2. BB life insurance company;

3. CCC damage insurance Co., Ltd. 4. DDR

5. EE Bank 6. FFF;

1. ○○○ Head of the tax office; 2. △△△△ Head of the tax office; and

May 3, 2013

July 5, 2013

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The imposition disposition by the head of ○○○ Tax Office on February 11, 201 against Plaintiff AA 2 (hereinafter referred to as “Plaintiff A”) was revoked on April 1, 207 through March 31, 2008 by the head of 0.3 O2 on the 20th 0th 6th 6th 6th 6th 7th 6th 6th 7th 6th 606, and the imposition disposition by the head of ○○○ Tax Office on the 20th 1st 6th 6th 6th 6th 6th 6th 6th 6th 66th 66th 66th 66th 6666th 666th 6666th 66th 66666th 6666th 606, respectively, on the 3th 10th 6th 6th 6th 6th 606. 6th 6th 66th 66.

1. Details of the disposition;

A. Plaintiff A Securities (2012Guhap29509)

1) Plaintiff A Securities, a domestic corporation operating a securities business, filed a request for correction to refund the total amount of the corporate tax from April 1, 2006 to March 31, 2007, and from March 31, 2007 to March 31, 2008, based on the tax credit provision on research and human resources development expenses under Article 10 of the Restriction of Special Taxation Act. Defendant ○○○ Tax Office decided to refund the amount equivalent to the above corporate tax on February 20, 209.

2) On December 1, 2007, the Plaintiff Company entered into a contract with GGSDS Co., Ltd. (hereinafter referred to as “GGSSSS”) that owns a department exclusively in charge of technological development and entrusted the “development of the next generation IT system” service. Under the above contract, the Plaintiff Company paid the OOS as research and development costs to GGSS.

3) Under Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008), the Plaintiff’s securities applied the tax credit for research and development expenses during the business year from April 1, 2008 to March 31, 2009, and deducted it from the tax amount to be paid at the time of filing a corporate tax return for the business year from April 1, 2009 to March 31, 2010.

4) The director of the Seoul Regional Tax Office ordered the company that was entrusted with the research and development services to rectify the tax credit for the portion that was partially re-entrusted by the company that was entrusted with the research and development services at the time of regular audit of the Defendant ○○○ Head of the Seoul Regional Tax Office. Accordingly, on February 11, 201, Defendant ○○○○ Head of the Seoul Regional Tax Office issued an order to correct the tax credit for the part that was re-entrusted by the company that was entrusted with the research and development services. On April 1, 2007, from March 31, 2008 to March 31, 2008, the head of the Seoul Regional Tax Office corrected and notified the KRW OOO of the corporate tax office for the business year from April 1,

5) On May 11, 201, Plaintiff AB securities were dissatisfied therewith and filed an appeal with the Tax Tribunal on May 11, 201. On June 8, 2012, the Tax Tribunal rendered a decision that “The cost re-entrusted to a business entity having a research institute or a department in charge of research and development expenses out of the research and development expenses that is re-entrusted by a third party shall be recognized as subject to the tax credit for research and development expenses” by Defendant ○○ Head of the Tax Tribunal on the ground that the research and development expenses (supply price) performed by the business entity holding a research institute or a department in charge of research and development expenses, excluding the amount subject to the tax credit for research and development expenses and human resources development expenses, shall be subject to the tax credit for the pertinent business year, and the remaining claims shall be dismissed.”

6) Accordingly, on June 19, 2012, the head of Defendant ○○○○○○ Tax Office reduced and corrected the number of OOOO directors from the corporate tax on April 1, 2007 to March 31, 2008, from April 1 to March 31, 2009, to the corporate tax on March 31, 2010, notified OOO directors (additional additional dues on refund) and OO directors (additional additional dues on refund) of the corporate tax refund (hereinafter the above reduced and exempted OO directors from the corporate tax on April 1, 2007 to 31, 208, respectively, and notified O1 to 301.30 OO directors for each business year (i.e., imposition of OO. 1 to 301.30 of the corporate tax on March 31, 201).

B. Plaintiff BB life insurance (2012Guhap31892)

1) The Plaintiff BB life insurance, a domestic corporation running the insurance business, concluded a contract with multiple trustees, such as HHCS (HNS), holding a dedicated department from April 1, 2007 to March 31, 2008 to March 31, 2009, to entrust the establishment of a new insurance system and a retirement pension independent system.

2) Plaintiff BB life insurance paid the total amount of OO (OO on April 1, 2007 through March 31, 2008: OO or OOO on April 1, 2008 through March 31, 2009: from April 1, 2008 to March 31, 2009) to the entrusted company under the above contract, and applied the Restriction of Special Taxation Act [it shall be from April 1, 2007 to March 31, 2008; it shall be subject to the tax credit of KRW 301 to 30.40 on April 26, 2008 (amended by Act No. 8827 of Dec. 31, 2007); and it shall be subject to the tax credit of KRW 301 to 308.40 on March 31, 2008 (O: 208 to 301.27.408) of the former Restriction of Special Taxation Act.

3) The head of the Defendant △△△△ Tax office deemed that research and development expenses are not subject to the tax credit, and the expenses paid by the consignment company to a third party, among the research and development expenses OOOO members (from April 1, 2007 to March 31, 2008: OOO members, from April 1, 2008 to March 31, 2009: OOO members, from March 11, 2008 to the business year: OO members) were not subject to the tax credit, and subsequently corrected and notified the corporate tax and development expenses for Plaintiff BB life on March 11, 201 to March 31, 208.

4) On September 21, 201, the Plaintiff BB life insurance appeals and filed an appeal with the Tax Tribunal on September 21, 201 through an objection on June 2, 2011. On June 25, 2012, the Tax Tribunal rendered a decision that “The cost re-entrusted to a company having a research institute or a department exclusively in charge among the research and development expenses that the entrusted company re-entrusted to a third party should be recognized as eligible for the tax credit” by the Defendant △△△△ Tax Office to confirm the cost of research and development services conducted by the company having a research institute or a department exclusively in charge of the development project from the amount excluding the research and development expenses subject to the tax credit by the Defendant △△△ Tax Office.”

5) Accordingly, on August 2, 2012, the head of the Defendant △△△△ Tax Office notified the Plaintiff BB life insurance of the reduction and correction of the KRW OOOO(s) from the corporate tax on April 1, 2007 to March 31, 2008, to the corporate tax on March 31, 2008, and of the corporate tax on March 31, 2009, the KRW OOO(s) and the KRW OO(s)(s)(s) from the corporate tax on the corporate tax on the corporate tax and on the corporate tax on the corporate tax on the corporate tax (i.e., the remaining reduction and exemption) (i., the KRW OO(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(301)(s)(s)(s)(s)(s).

C. Plaintiff CCC damage insurance (2012Guhap32369)

1) On May 30, 2008, Plaintiff CCC Damage Insurance Co., Ltd. (III Automobile Insurance Co., Ltd.), a domestic corporation operating an insurance business, entered into a contract with JJ system business (hereinafter “J system business”), which owns a department exclusively in charge, to entrust the establishment of a general insurance system, etc., and paid OCOs to the J system business as research and development costs.

2) The Plaintiff CCC damage insurance did not apply the tax credit for research and development expenses under Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008) because there was no tax amount to be paid as a result of the occurrence of losses carried forward during the business year from April 1, 2008 to March 31, 2009. The Plaintiff omitted the application for the tax credit for the said research and development expenses at the time of filing a corporate tax return for the business year from April 1, 2009 to March 31, 2010.

3) On October 26, 2010, Plaintiff CCC damage insurance filed a claim for correction with the director of the tax office of △△△, by applying the tax credit for the said research and development expenses, to the said tax credit for the said research and development expenses, adding the amount of corporate tax reduction and exemption to the corporate tax reduction and exemption tax amount for the business year from April 1, 2009 to March 31, 2010.

4) On December 29, 2010, Defendant 1: (a) on the part of Plaintiff CCC damage insurance, Defendant 2: (b) on the ground that the aforementioned research and development costs constituted expenses re-entrusted by JJ system business to a third party and not subject to the tax credit for research and development expenses, Defendant 2: (c) on the ground that only KRW OO of the corporate tax is refunded by adding the deduction tax amount to the deduction tax amount; and (d) on the remainder of OOO (=OOE -OOOwon) the request for correction was rejected.

5) On March 25, 2011, Plaintiff CCC damage insurance is dissatisfied therewith, and filed an appeal with the Tax Tribunal on October 5, 201 on the objection on March 25, 201. On June 28, 2012, the Tax Tribunal rendered a decision to reject the refund of the corporate tax on December 29, 2010 to Plaintiff CCC damage insurance for the business year from April 1, 2009 to March 31, 201, on the ground that the cost re-entrusted by the GJ system business entity to a third party shall be included in the amount of the tax credit, and the remainder of the tax credit shall be dismissed on the ground that the cost re-entrusted by the GJ system business entity to a third party is re-entrusted.

6) Accordingly, on July 11, 2012, the head of △△ District Tax Office: (a) granted the tax credit for the re-entrusted research and development expenses to the company having exclusive responsibility for the Plaintiff CCC damage insurance; (b) reduced or corrected the corporate tax OOO members from April 1, 2009 to March 31, 2010; and (c) refunded the tax amount (hereinafter referred to as the "third disposition").

D. Plaintiff Dental Life Insurance (2012Guhap32536)

1) The Plaintiff DDR, a domestic corporation operating insurance business, entered into a contract with the Plaintiff DDR companies (hereinafter referred to as “D system companies”) holding a department in charge from April 1, 2007 to March 31, 2008 to April 31, 2008 to March 31, 2009 to entrust research and development of the electronic computer system, such as the extension of domains, network improvement, etc.

2) Under the above contract, Plaintiff DDR paid OO (OOO on April 1, 2007 through March 31, 2008: OOO, from April 1, 2008 to March 31, 2009: OOO: from March 31, 2009; from April 1, 2007 to March 31, 2009, the Restriction of Special Taxation Act [the former Restriction of Special Taxation Act (amended by Act No. 8827, Dec. 31, 2007); from March 31, 2008 to 30O tax credits for research and development funds for the business year, Article 130 of the former Restriction of Special Taxation Act (amended by Act No. 8827, Apr. 1, 2008 to 30, 208; 130O tax credits for research and development funds for the business year from March 31, 2009).

3) The head of the Defendant △△△△ Tax Office, on December 1, 2011, deemed that the aforementioned research and development expenses are not subject to the tax credit, deemed that the expenses paid by re-entrustment to a third party without performing the DNA system business (OOOO won from April 1, 2007 to March 31, 2008: OOO won, from April 1, 2008 to March 31, 2009: OOO won) were not subject to the tax credit, and subsequently corrected and notified the corporate tax and development expenses for Plaintiff Da Life on March 1, 2007 to March 31, 208.

4) On January 5, 2012, Plaintiff DDA life insurance was dissatisfied with it and filed an appeal with the Tax Tribunal on January 5, 2012. On June 28, 2012, the Tax Tribunal rendered a decision that “The amount of expenses re-entrusted to a company having a research institute or a department in charge of research and development expenses from among the research and development expenses re-entrusted to a third party by the consignment company shall be subject to the tax credit shall be subject to the tax credit for research and human resources development expenses, but the amount of expenses re-entrusted to a company having a department in charge of the OO personnel re-entrusted to a third party shall be subject to the tax credit for research and human resources development expenses

5) Accordingly, on August 10, 2012, the head of the Defendant △△△△ Tax office, after conducting a reinvestigation, refunded the KRW OO on April 1, 2007 to March 31, 2008 of the corporate tax for the business year from April 1, 2008 to March 31, 209 (hereinafter referred to as the “OOOO disposition”) respectively, of the corporate tax for the business year from April 1, 2008 to March 31, 209 (hereinafter referred to as the “unpaid disposition”).

E. Plaintiff EE Bank (2012Guhap38428)

1) The Plaintiff EE Bank, a domestic corporation carrying on financial business, entered into a contract with multiple trustees, such as GGSSS, who have a dedicated department in the business year 2005, 2007, and 2008 to entrust the development of a computer system, and paid research and development expenses to the above trustees.

2) The Plaintiff EE Bank reported and paid each of the research and development expenses under Article 10 of the Restriction of Special Taxation Act [the former Restriction of Special Taxation Act (amended by Act No. 7839 of Dec. 31, 2005 for the business year of 2005), the former Restriction of Special Taxation (amended by Act No. 8827 of Dec. 31, 2007) for the business year of 2007, and the former Restriction of Special Taxation (amended by Act No. 9272 of Dec. 26, 2008) for the business year of 208, applying the tax credit under Article 10 of the former Restriction of Special Taxation Act for the research and development expenses (amended by Act No. 9272 of Dec. 26, 2008).

3) After conducting an integrated investigation into Plaintiff EE Bank, the director of the Seoul Regional Tax Office determined that the part of the research and development service entrusted by Plaintiff EE Bank is not eligible for tax credit, and notified Defendant △△△ director of the tax office of this point.

4) Accordingly, on December 10, 2010, the head of the Defendant △△△△ Tax Office issued a notice of correction and notification of the Plaintiff EE Bank of the corporate tax for the business year 2005 and the corporate tax for the business year 2007 OOO (the part concerning research and development expenses in this case). In addition, the head of the Defendant △△△△ Tax Office corrected that the amount of OOO of the corporate tax for the business year 2008 excluded research and development expenses should be deducted from the amount of tax to be refunded to the Plaintiff EE Bank due to any other reason for correction and correction. The Plaintiff EE Bank requested the refund by adding the above OOOO to the deductible reduction and exemption tax amount on March 9, 2011, but rejected the request for correction on March 25, 2011.

5) On March 9, 2011, Plaintiff EE Bank dissatisfied with the part concerning the imposition of corporate tax for the year of 2005, and the part concerning the imposition of corporate tax for the year of 2007, it filed an appeal with the Tax Tribunal on April 19, 201, as it is dissatisfied with the disposition of rejection of the above disposition of correction. The Tax Tribunal decided on June 27, 201, that "the expenses re-entrusted to a research institution or an enterprise with a department in charge of research and development from among the research and development expenses re-entrusted by the entrusted enterprise to a third party shall be recognized as subject to the tax credit for research and development expenses" on the ground that "the expenses re-entrusted to a research institution or a department in charge of research and development expenses paid by the entrusted enterprise is reasonable to recognize as subject to the tax credit for research and development expenses."

6) Accordingly, the head of the defendant △△△△ office recognized the tax credit for research and development expenses re-entrusted to an enterprise having a dedicated department, and notified the amount of OOOO directors for the business year 2008 corporate tax and the amount of OO directors for the refund of corporate tax and the amount of additional OO directors for the refund of corporate tax (hereinafter referred to as "OO directors") (i.e., the amount of the imposition of corporate tax for the business year 2005, Dec. 10, 2010; (ii) the portion of the imposition of OO directors for the corporate tax for the year 2007, the amount of the imposition of the corporate tax for the business year 2007, the amount of the remaining OO directors after reduction of the amount of the corporate tax for the business year 2007 (i.e., the amount of the imposition of OO directors - the amount of the imposition of the corporate tax for the year 2007, and (iii) the amount of the rejection disposition against O directors members (i).

F. Plaintiff FF (2012Guhap40834)

1) Plaintiff FF, a domestic corporation that runs the financial business and the distribution business of agricultural and livestock products, entered into a contract with multiple consignment companies, such as GGSS, holding a dedicated department from January 2008 to December 2009, to entrust the establishment of a computer system, etc.

2) The Plaintiff FF paid research and development expenses to the above trustee company. As to this, the Plaintiff FF returned and paid corporate tax by deducting the amount of tax payable from the amount of tax payable under Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9272, Dec. 26, 2008; Act No. 9272, Dec. 26, 2008; Act No. 9921, Jan. 1, 2010) by applying the tax credit under Article 10 of the former Restriction of Special Taxation Act for the business year 2009.

3) On December 5, 2011, the head of Defendant △△△△ Tax office revised and notified the corporate tax for the business year 2008 and the corporate tax for the business year 2009 to the Plaintiff FF as it did not fall under the tax credit for research and development expenses, on the ground that the aforementioned trustee did not directly perform the research and development expenses and re-entrusted it to a third party (OOO, 208 business year: OOO, 2009 business year: OOO, 2009).

4) On March 5, 2012, Plaintiff FF appealed against it and filed an appeal with the Tax Tribunal on March 5, 2012. On September 5, 2012, the Tax Tribunal rendered a decision that “The cost re-entrusted to a company having a research institute or a department in charge of research and development expenses incurred by a re-entrusted company to a third party shall be recognized as subject to the tax credit for research and development expenses,” confirming the cost of research and development services performed by the re-entrusted company (limited to the case of holding a research institute or department in charge) and correcting the relevant business year’s tax amount, and dismissed the remaining appeal.”

5) Accordingly, on October 5, 2012, the head of the Defendant △△△△ Tax office reduced and corrected OOOOF from among corporate tax for the business year 2008 and notified OOOOO(additional additional dues on refund of corporate tax for the business year 2009; hereinafter the same applies) of the disposition imposing corporate tax for the business year 2008 (i.e., the disposition imposing OOOOO(=the disposition imposing 2009) was completely revoked; hereinafter the same shall apply) and (ii) the disposition imposing OOO(the 208 corporate tax for the business year 2008 (i.e., the OOO - the OOOO) was taken.

[Reasons for Recognition] A without dispute, entry in Gap's Evidence Nos. 1 through 30 (including each number; hereinafter the same shall apply), Gap's Evidence No. 1, 2, 3, 5, Eul's Evidence No. 1, Eul's Evidence No. 2, Eul's Evidence No. 1, 2, Eul's Evidence No. 1, 2, Eul's Evidence No. 1, 2, Eul's Evidence No. 1 and 2, and the purport of the whole pleadings as a whole.

2. Whether each of the dispositions of this case is legitimate

A. The parties' assertion

1) The plaintiffs' assertion

① Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 921, Jan. 1, 2010); Article 10 of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010); [Attachment 6] provides that "expenses for the entrustment of technological development services, etc. to a research institute or a dedicated department of research and development expenses" among research and development expenses shall be subject to tax credit; it is not permitted to reduce the provisions that benefit taxpayers without reasonable grounds; ② Article 10 of the Restriction of Special Taxation Act, which provides for tax credit, provides that the purpose of the disposition is to promote research and development by granting more benefits from investment to taxpayers; ③ The method of receiving technological development services to an institution having a dedicated department, which is a kind of entrustment, may be determined by itself to achieve the purpose of the delegation of technology development; ④ Whether a large-scale computer development services is unlawful in the dedicated department, regardless of whether it is possible to request another dedicated department to manage research and development funds.

2) The defendants' assertion

A) Defendant △△△ Head of the tax office and △△ Head of the tax office

It was not revealed whether research and development costs for the entrustment of research and development services claimed by BB life insurance and CCC damage insurance have been used.

B) The defendants' assertion

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

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether research and development services are applicable

Article 9(5) of the Restriction of Special Taxation Act provides that "the activities to achieve scientific or technical progress and to develop a new service and service delivery system" for research and development, and Article 9(5) of the former Restriction of Special Taxation Act (amended by Act No. 11133, Dec. 31, 201) provides that "the activities to achieve scientific or technical development" for research and development. As seen earlier, the services entrusted by Plaintiffs BB life insurance and CCC insurance are activities to achieve technical development by building a new systematic and comprehensive system to achieve optimal operation and efficiency of information and communications technology, and the National Tax Service interpreted that "the development services entrusted by a domestic corporation that runs a financial or insurance business" fall under research and development services entrusted by a domestic corporation that runs a department exclusively in charge of research and development (see, e.g., Supreme Court Decision 2010Da111335, Jul. 14, 2010).

2) Whether a research and development service is subject to tax credit if it is re-entrusted

In full view of the following circumstances, it is reasonable to view that the expenses incurred in re-entrustment of research and development services do not constitute a tax credit, in full view of the following circumstances that can be comprehensively seen in the respective descriptions of the above recognition facts and Eul's evidence Nos. 4, 5, Eul's evidence Nos. 5, Eul's evidence No. 5, Eul's evidence No. 6, Eul's evidence No. 3 and Eul

A) In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted in accordance with the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, the strict interpretation of the provisions that can be seen as clearly preferential provisions among the requirements for reduction or exemption accords with the principle of fair taxation (see, e.g., Supreme Court Decisions 2008Du11372, Aug. 20, 2009; 2005Da19163, May 25, 2006).

B) Article 6(1) of the Enforcement Decree of the Restriction of Special Taxation Act [Article 6(2) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21307 of Feb. 4, 2009), "trustee production business under the OEM method prescribed by Presidential Decree" is divided into "entrustment" and "re-entrustment" by stipulating that "the manufacturing business under the OEM method is entrusted by the truster and sub-entrustment of the product by re-entrustment of the product."

C) However, Article 8(1) and [Attachment 6] subparagraph 1(b) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010); 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. 21307, 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. 21307, Feb. 18, 2010), which is at issue in the instant case, provide that research and development

D) After February 2, 2012, subparagraph 1 (b) (i) of the Enforcement Decree of the Restriction of Special Taxation Act [Attachment Table 6] amended by Presidential Decree No. 23590 on February 2, 2012 provides that "the expenses for the entrustment of research and development services in the field of science and technology (including re-entrustment) to institutions, such as domestic and foreign research institutes or dedicated departments, are included in the subject of tax credit. In this regard, in the reason and main contents of the amendment of the above Act, "in addition of expenses for the re-entrustment of research and development to the subject of tax credit for research and development expenses", the National Tax Service's "2012 revised tax law" provides that "In accordance with the recent trend of technology convergence, one company is not eligible for tax credit in the case of re-entrustment without performing all research and development services, and it seems that the Enforcement Decree of the Restriction of Special Taxation Act was excluded from the subject of tax credit for re-entrustment [Article 251 (b) of the Enforcement Decree of the Restriction of Special Taxation Act].

E) Since the Plaintiffs entrusted the research and development services to the trustee company and the trustee company consented, the legal principles on delegation between the Plaintiffs and the trustee company apply. Article 682(1) of the Civil Act provides that “A mandatory shall not allow a third party to perform the delegated affairs on behalf of the mandator without the consent of the mandator or any inevitable reason.”

F) The Plaintiffs claim to the effect that it is unfair to exclude the tax credit for re-entrustment made by a trustee company under their own responsibility, which is the truster, to have the Plaintiffs be responsible for the decision that it did not itself, and thus, is contrary to the principle of self-responsibility. However, the Plaintiffs may be entitled to the tax credit by means of an agreement to prohibit re-entrustment upon entering into an entrustment contract with a trustee company, etc. However, the Plaintiffs’ demand for such demand is too unreasonable or harsh in light of the enormous tax benefits that the Plaintiffs enjoy. Therefore, the Plaintiffs cannot be held liable to the Plaintiffs for the failure to enjoy the tax credit because they did not enter into such an agreement with the trustee company.

3) Whether the re-trustee is eligible for tax credit where the re-trustee does not hold a research institute or a dedicated department

However, even if the expenses incurred in re-entrustment of research and development services fall under the scope of tax credit, it is reasonable to view that the strict interpretation of the provisions that clearly consider the preferential provisions among the provisions on tax reduction and exemption is consistent with the principle of tax equity, and that the following circumstances revealed in full view of the overall purport of the pleadings are as follows: (a) where a re-entrusted company does not hold a research institute or a department in charge, it does not constitute a tax credit.

가) 구 조세특례제한법 시행령(2010. 2. 18. 대통령령 제22037호로 개정되기 전의 것) 제8조 제1항, [별표6] 제1호 나목 ①, 구 조세특례제한법 시행령(2009. 2. 4. 대통령령 제21307호로 개정되기 전의 것) 제9조 제2항, [별표6] 제1호 나목 ①은 연구개발용역을 위탁함에 따른 연구개발비 세액공제에 관하여 그 수탁기관을 ㉮ 고등교육법에 의한 대학 또는 전문대학, ㉯ 국・공립연구기관, ㉰ 정부출연연구기관, ㉱ 과학기술분야를 연구하는 국내외의 비영리법인(비영리법인에 부설된 연구기관을 포함한다), ㉲ 국내외 기업의 연구기관(과학기술분야를 연구하는 경우에 한한다) 또는 '전담부서', ㉳ 「산업기술연구조합 육성법」에 의한 산업기술연구조합, ㉴ 산업디자인진흥법에 의한 한국디자인진흥원, ㉵「국가과학기술 경쟁력 강화를 위한 이공계지원 특별법」에 의한 연구개발서비스업을 영위하는 기업, ㉶「산업교육진흥 및 산학협력촉진에 관한 법률」에 의한 산학협력단, ㉷ 한국표준산업분류표상 기술시험・검사 및 분석업을 영위하는 기업으로 제한적으로 열거하고 있다.

Meanwhile, Article 8(1) and [Attachment 6] subparagraph 1(a) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010); Article 9(2) and [Attachment 6] subparagraph 1(a) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 21307, Feb. 4, 2009); subparagraph 1(a) of the former Enforcement Rule of the Restriction of Special Taxation Act (amended by Ordinance No. 151, Apr. 20, 2010); Article 7(1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Ordinance of the Ministry of Strategy and Finance No. 96, Aug. 28, 2009; Ordinance No. 16, Apr. 7, 2009; Ordinance No. 8, Apr. 29, 2008);

In addition, Article 7(1)2 of the former Technology Development Promotion Act (amended by Act No. 10445, Mar. 9, 201); Article 15(1) and (2) of the former Enforcement Decree of the Technology Development Promotion Act (amended by Presidential Decree No. 22977, Jun. 24, 2011); Articles 7 and 8 of the former Enforcement Rule of the Technology Development Promotion Act (amended by Ordinance of Ministry of Knowledge Economy No. 214, Nov. 25, 2011); to be recognized as a business-affiliated research institute, a research and development task of the field of science and technology shall be the main business of the department; to be recognized as a research and development task of the Korea Industrial Technology Promotion Association entrusted by the Minister of Education, Science and Technology with independent research facilities; and to be reported to the head of the Korea Industrial Technology Promotion Association by the Minister of Education, Science and Technology; and each of the above agencies shall be determined and publicly notified by the Minister of Education, Science and Technology.

As such, the Decree on the Restriction of Special Taxation limits a trustee company to an institution that satisfies certain requirements. This is not easy to determine whether it constitutes a research and development service, and thus, there is a possibility that the tax credit system for research and development expenses may be abused, as well as where a company that is not able to carry out research and development activities carries out such research and development activities is able to carry out such research and development activities poorly. Therefore, it seems to be aimed at operating the tax credit system for research and development expenses objectively and fairly by granting the tax credit benefits

B) If a research and development service is entrusted to an institution holding a dedicated department, as alleged by the Plaintiffs, regardless of whether it has a dedicated department, the expenses incurred in the entrustment are subject to the tax credit for research and development expenses, such as entrusting research and development services to an institution holding a dedicated department and re-entrusted such services to an institution holding the dedicated department for the purpose of tax credit, and thus, the tax credit system for research and development expenses may be abused. In addition, even though an institution holding the dedicated department performs research and development services, it is contrary to the principle of substantial taxation by granting tax credit based only on the form that research and development services are entrusted to an institution holding the dedicated department,

C) The Decree on the Restriction of Special Taxation divides research and development costs into cases of self-research and commission, and joint research and development. In the case of self-research and development, personnel expenses of researchers engaged in research and their researchers engaged in research affairs in the field of science and technology and of those who directly support their research affairs are one of the expenses subject to the tax credit. In this regard, the Seoul High Court (Seoul High Court 2010Nu25635) ruled that even a researcher engaged in a dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated

4) Sub-committee

Therefore, each disposition of this case is legitimate, and the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.