(영문) 서울고등법원 2008.7.2.선고 2008누4260 판결

2. The part of global income tax and value-added tax among the dispositions imposed by the Defendant against the Plaintiff on November 1, 2006 in the separate sheet of imposition shall be revoked.

3. The total costs of the lawsuit shall be ten minutes, which shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

Purport of claim and appeal

1. Purport of claim

Each disposition on November 1, 2006 imposed by the defendant against the plaintiff on November 1, 2006 shall be revoked.

2. Purport of appeal

The order is as set forth in the text.

Reasons

1. Details of the imposition;

A. The Plaintiff is a business operator who is engaged in patent-related legal services in the trade name, called " Park Jong-gu Seoul Metropolitan Government Office of Patent Law and Patent Law."

B. Around September 2006, the director of the tax office of Seodaemun reported global income tax and value-added tax to the Plaintiff, and then notified the Defendant that the Plaintiff failed to report KRW 489,782,80,800 out of the patent attorney fee for domestic litigation and KRW 539,582,80 out of the total amount of KRW 49,80,80,000 among the patent attorney fee for foreign clients and KRW 49,80,800 among the patent attorney fee for domestic litigation by reporting the receipt date of patent attorney’s service fee for foreign minemen on deposit date, not the issue date of the written request.

C. Accordingly, on November 1, 2006, the Defendant issued a revised and notified the Plaintiff of each global income tax and resident tax for the year 2003 to 2005, and each of the value-added tax for the period from January 2003 to January 2006 (hereinafter “instant disposition of imposition of global income tax and value-added tax”) based on the foregoing taxation data (hereinafter “instant disposition of imposition of global income tax and value-added tax”).

D. The plaintiff appealed and filed an appeal with the National Tax Tribunal on December 4, 2006, but was dismissed on August 28, 2007.

[Ground of recognition] Evidence No. 1-1-13, Evidence No. 2-1-7, Evidence No. 4-10, Evidence No. 13-2, Evidence No. 1-3, Evidence No. 4-10, Evidence No. 12, Evidence No. 13-1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. In light of the following circumstances, the Plaintiff’s assertion (1) and the Plaintiff’s receipt time of patent attorney’s patent attorney’s service fees against foreign clients is deemed the payment date of service fees. As such, the instant disposition that deemed the date of issuance of a written request to foreign clients as the receipt date of service fees is unlawful. (a) The instant disposition was rendered on a different premise. (a) The decision of the National Tax Tribunal or the Supreme Court Decision 94Nu4608 Decided August 12, 1994 ruled that the receipt time of patent attorney’s service fees to foreign clients should be based not on the date when the patent attorney’s written request is issued to foreign clients, but on the date when the service fees are paid from foreign clients.

(B) The Plaintiff has already filed a tax return with the payment date of patent attorney fees in accordance with the practice of the past. However, since the competent tax authority did not raise any objection thereto, the Plaintiff’s trust formed therefrom should be protected. (c) Unlike the case where the client is a foreigner, the Plaintiff cannot agree to the payment of the delegated affairs in advance because there is no concept of advance payment or contingent fees, and thus it is practically impossible for the delegated affairs of patent attorneys, such as patent applications, etc., to accurately estimate the required time in advance to determine the amount of fees. Therefore, it is practically impossible for the delegated affairs of patent attorneys, such as patent applications, etc., to determine the amount of fees by accurately predicting the required time in advance. Therefore, it is necessary for the delegated affairs by the delegated person to confirm the entrusted affairs and the procedures for requesting the client to request remuneration after sending the written request to the client, and to review whether the requested amount of fees is appropriate

(d) Where the date of issuance of a written request for receipt of income is the date of issuance of the receipt of the written request and there is any service charge that has not been actually paid, the calculation of losses will be diversified, and the exchange losses between the date of issuance of the written request and the service

(2) The time of receipt of the Plaintiff’s patent attorney’s provision of services for the following reasons should be deemed to be the date of issuance of a written request to the foreign clients. (A) Article 48 subparag. 8 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15969, Dec. 31, 1998) at the time of the judgment of the said Supreme Court (amended by Presidential Decree No. 15969, Dec. 31, 1998) stipulates the time of receipt of the provision of services as “the date of payment under an agreement (if the date of payment is not determined, the date of completion of the provision of the relevant services)” but the decision of the said Supreme Court cannot be applied to the above case since Article 48 subparag. 8 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17825, Dec. 30, 2002) as amended on December 22, 2008.

(B) In the case of a general taxpayer, the amount of money that is not paid for the provision of goods or services under corporate accounting standards and tax-related Acts shall be treated as the account receivable but shall be treated as losses if any cause, such as default, occurs. Therefore, deeming only the Plaintiff as the receipt date of the service payment is contrary to the tax equity.

C. In the case of providing patent services to foreign clients, the Plaintiff asserts that the procedures for the Plaintiff to be notified of the provisional decision on the amount of remuneration claimed by the Plaintiff are necessary. However, it should be deemed that there was an agreement between the Plaintiff and the foreign clients that the Plaintiff would follow the fee code set by the Plaintiff on the ground that most of the service cost provided by the Plaintiff to foreign clients was paid upon the Plaintiff’s

(b) Related statutes;

As shown in the attached Form.

C. Determination

(1) Order of determination

The key issue of this case is whether the time when the service cost under the Income Tax Act and the time when the service is supplied under the Value-Added Tax Act should be seen as the time when the service cost is paid or as the time when the service is supplied to a foreign client is supplied to a foreign client. As such, the following is examined in order to examine the purport of the above Supreme Court decision, the amendment process under Article 48 subparagraph 8 of the Enforcement Decree of the Income Tax Act, the Plaintiff’s patent attorney’s status of the service provision to the foreign client, etc., and then, the decision should be made when the time when the service cost under the Income Tax Act and

(2) The purport of the Supreme Court Decision 94Nu4608 Decided August 12, 1994 is that the Plaintiff was a patent attorney who has been delegated with the affairs of patent, trademark, etc. to the Republic of Korea by a foreign client. The Supreme Court held that the patent application procedure is performed through various stages, such as application, request for examination, examination, publication, patent application, and patent registration; the patent attorney’s fees for vicarious performance of patent registration affairs are performed in Korea after having agreed on payment of fees between the client and the patent attorney in advance; and the patent attorney’s fees are received in case of a foreign case. On the other hand, unlike domestic cases, it is customary to receive separate contingent fees for patent registration. On the other hand, unlike domestic cases, the court below determined that the aforementioned fees and fees of the patent attorney up to that time were not returned to the foreign client by referring to the minimum fees and fees of the patent attorney at each stage after receiving documents for fact-finding and submitting them to the Korean Intellectual Property Office, and that such fees and fees of the patent attorney are not returned to the foreign client by no later than that time limit is justified.

(3) Article 24(3) of the Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; Article 28(3) of the Enforcement Decree of the Income Tax Act (amended by Act No. 4803, Dec. 2, 1994); Article 48(3) of the Enforcement Decree of the Income Tax Act (amended by Act No. 48(3) of the Income Tax Act), which provides the receipt time for providing personal services, was amended as follows:

(4) The Plaintiff, an attorney-at-law and patent attorney-at-law, both of the Plaintiff’s foreign clients (A) filed a patent application application with the Korean Intellectual Property Office to immediately perform delegated affairs, such as submitting documents filed to the Korean Intellectual Property Office to handle the delegated affairs, and filing a claim for the cost of patent attorney services with the foreign clients by referring to the minimum remuneration standards set by the Patent Attorneys Association at each stage and the cost incurred up until that stage. Most of the foreign clients are entitled to pay the cost of services requested by the Plaintiff, but some foreign clients are also entitled to request the reduction of the cost of services. The Plaintiff did not have separately agreed upon the cost of services with the foreign clients in advance or later.

(B) In most cases, foreign clients are paying service charges after the lapse of 1 to 6 months from the time of receipt of the request. However, there are cases where more than 2 years have elapsed, and where they do not pay it.

C. The Plaintiff sent a written application to a foreign client for the cost of providing services at each stage (expenses incurred and patent attorney fees) and prepared and managed the statement of claim date, claim amount, deposit date, deposit amount, etc. in order of the number of the written request, and managed the outstanding amount in accordance with the statement of the outstanding amount, such as urginging the foreign client to transfer the outstanding amount as soon as possible.

D) In providing patent attorney services requested by a foreign client, the Plaintiff spent all of the expenses, such as the amount of official payments, translation fees, and investigation fees, paid to the Korean Intellectual Property Office related to the patent application, as the Plaintiff’s funds, and reported global income tax, etc. by appropriating it as necessary expenses at the time

E) In the case of patent attorneys other than the Plaintiff, the Defendant did not conduct specific fact-finding as to which method the time of receipt of the service cost provided to the foreign client was reported.

[3] If there is no dispute over the Plaintiff’s assertion, Gap’s evidence 2, Eul’s evidence 5-2, Eul’s evidence 12, and Eul’s evidence 13, Eul’s evidence 15, and 16-1 through 4, the entire purport of oral proceedings (5) Article 39(1) of the Income Tax Act is the year to which the date on which the Plaintiff’s total revenue amount and necessary expenses are determined belongs, and it is difficult to determine that the Plaintiff would have a right to claim for the pertinent tax base based on the premise that the Plaintiff’s right to claim for the pertinent tax year was not determined otherwise on the grounds that it is difficult to determine that the Plaintiff would have a reasonable interest to claim for the pertinent tax base based on the premise that the Plaintiff’s interest would have accrued at the time when the pertinent tax base was determined otherwise than the time when the right to claim for the pertinent tax base was realized.

(6) Time of supply for services under the Value-Added Tax Act.

Article 9(2) of the Value-Added Tax Act and Article 22 subparag. 1 and 3 of the Enforcement Decree of the Value-Added Tax Act provide that the time when the provision of services is completed in the ordinary case of supply (Article 22 subparag. 1 of the Enforcement Decree), where the provision of services is not applicable, the time when the provision of services is completed and the price of supply is determined (Article 22 subparag. 3 of the Value-Added Tax Act). In light of the above circumstances, the supply price of the Plaintiff’s patent attorney services for the foreign client subject to value-added tax shall be determined only when the Plaintiff issued a written claim stating the cost and the amount of remuneration to the foreign client and received or actually transferred the payment from the foreign client. Thus, the supply price of the Plaintiff’s patent attorney services for the foreign client shall be determined only when the supply price is determined pursuant to Article 22 subparag. 3 of the Enforcement Decree of the Value-Added Tax Act (In this case, most of the Plaintiff’s patent attorney services are subject to zero tax rate under Article 11 subparag. 4 of the Value-Added Tax Act.).

(7) Sub-determinations

Therefore, among the disposition of this case, the part regarding the receipt time of service costs under the Income Tax Act and the time of supply for services under the Value-Added Tax Act regarding the patent attorney services provided to foreign clients is unlawful.

Furthermore, since the scope of revocation cannot be calculated with only the evidence submitted by the parties or the evidence presented by the court by the examination of evidence, the pertinent disposition of this case must be revoked in its entirety (see Supreme Court Decision 94Nu13527 delivered on April 28, 1995).

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and since the judgment of the court of first instance is unfair on the grounds of its conclusion, the plaintiff's appeal shall be accepted, and the judgment of the court of first instance shall be revoked, and it is so decided as per Disposition with the decision to revoke