Seocho 2012west 2542 (O6, 2012)

Where a trustee entrusted with research and development services partially entrusts such services to a third party, whether such services fall under a tax credit for research and human resources development expenses.

If a trustee entrusted with research and development services re-entrusted such services to a third party, it is reasonable to view that such services are eligible for tax credit even if the re-entrusted company does not hold the research institute or the exclusive department

2012Guhap36743, revocation of revocation of a request for rectification of corporate tax, etc.

AA Bank, Inc.

BB Director of the Tax Office

May 9, 2013

August 22, 2013

1. The Defendant’s refusal of an application for correction filed against the Plaintiff on June 24, 201 for the business year 2007, and the disposition of imposition of an OOO of corporate tax for the business year 2008, which was filed against the Plaintiff on December 7, 201, is revoked.

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

The same shall apply to the order.

1. Circumstances of dispositions;

A. The Plaintiff, a corporation running banking business, entered into a contract on April 1, 2006 to March 31, 2007 (hereinafter referred to as the "business year 2007") with a trustee company such as CCC, etc. (hereinafter referred to as the "trustee company of this case") on April 1, 2007 to March 31, 2008 (hereinafter referred to as the "business year 2008") to entrust the establishment of a computer system with the trustee company of this case, and paid a total of OO (OOO, OOO, and hereinafter referred to as "research and development expenses of this case") to the trustee company of this case.

B. At the time of filing a corporate tax for 2007, the Plaintiff omitted the application of the tax credit for research and human resource development costs (hereinafter “tax credit for research and development costs”) under Article 10 of the former Act on Special Cases concerning Tax Restriction (amended by Act No. 9272 of Dec. 26, 2008, and hereinafter “former Restriction of Special Taxation Act”), and reported and paid the corporate tax for the above business year after filing a corporate tax credit for research and development costs pursuant to Article 10 of the former Restriction of Special Taxation Act at the time of filing a corporate tax for the business year 2008.

C. On March 11, 2011, the Plaintiff filed a claim for correction of corporate tax for the business year 2007, under Article 10 of the former Restriction of Special Taxation Act, on the research and development expenses of this case paid to the Defendant in the business year 2007, for the purpose of refunding OOO members after deducting research and development expenses pursuant to Article 10 of the former Restriction of Special Taxation Act. On June 24, 2011, the Defendant rejected the Plaintiff’s request for correction on the ground that the expenses incurred by the instant trustee company re-entrusted to a third party out of the instant research and development expenses in the business year 2007 is not subject to the tax credit, and the Plaintiff’s request for correction is not distinct in the Plaintiff’s request for correction (hereinafter referred to as “instant rejection disposition”).

D. On December 7, 2011, the Defendant issued a correction and notification of the corporate tax belonging to the business year 2008, on the ground that the amount of the instant research and development expenses incurred by the instant consignment business entity to a third party out of the instant research and development expenses for the business year of 2008 does not constitute the subject of the tax credit for the research and development expenses (including the additional tax for unfaithful payment) (hereinafter referred to as the “instant disposition of imposition of the OOO members remaining after the correction of the reduction,” and the instant disposition of rejection and the instant disposition of imposition are combined).

E. On September 16, 201, the Plaintiff filed an appeal with the Tax Tribunal on the instant refusal disposition, and on June 28, 2012, the Tax Tribunal rendered a re-audit decision that the Defendant’s rejection disposition against the Plaintiff on June 24, 2011, which was issued by the Plaintiff on June 24, 2011, decided that the amount that the instant trustee company re-entrusted to a company holding a research institute or a department in charge, and paid to the Plaintiff was subject to the tax credit for research and development expenses, which would be corrected for the business year of 2007. Accordingly, on August 6, 2012, the Defendant accepted the portion of the corporate tax OOO for the business year of 207 among the Plaintiff’s correction claims, and refunded the said amount.

F. On May 16, 2012, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, and on July 19, 201, the Tax Tribunal rendered a re-audit on the amount paid by the Defendant to the Plaintiff on December 7, 2011 for the business year 2008, which was imposed by the Defendant on the Plaintiff on the Plaintiff on December 7, 2011, that the amount paid by the instant trustee company to a business holding a research institute or a department in charge of the instant research and development expenses of the business year 2008, which is subject to the tax credit for research and development expenses, shall be corrected for the business year 2008. Accordingly, on September 7, 2012, the Defendant corrected the amount of the tax credit for the corporate tax to be reverted to the business year 2008.

[Based on recognition] The descriptions of Gap 1, 2, 3, 5, and 6 (in case of household number, including household number), and Eul 1, 2, and 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

According to the former Restriction of Special Taxation Act and the Enforcement Decree of the same Act, research and development expenses eligible for the tax credit refer to "expenses for technology development services entrusted to a domestic or foreign research institute or a dedicated department," and if research and development expenses are paid to a trustee with a dedicated department in terms of the legislative intent and interpretation of the provision on the tax credit for research and development expenses, the expenses are all subject to the tax credit for research and development expenses. However, the defendant considers that the trustee does not constitute the tax credit for research and development expenses for the portion re-entrusted to another business that is not owned by the dedicated department, and without any reasonable reason, it is unlawful that the scope of the tax credit for

2) The defendant's assertion

In addition, it was not revealed whether the costs incurred in the entrustment of research and development services alleged by the Plaintiff were used for research and development activities, and the research and development costs corresponding to the re-entrusted portion by the trustee is not subject to tax credit. Even if the research and development costs corresponding to the re-entrusted portion constitute tax credit, the costs paid to the re-entrusted portion is not

B. Relevant statutes

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

C. Determination

1) Organization of issues

구 조세특례제한법 제10조 제1항 제2호， 같은 법 시행령(2009. 2. 4. 대통령령 제21307호로 개정되기 전의 것， 이하 같다) 제9조 제2항， [별표 6] 제1호 나목 ①，㉲에 의하면， 중소기업이 아닌 내국법인이 국내외 기업의 연구기관(과학기술분야를 연구하는 경우에 한한다) 또는 전담부서에 기술개발용역 등을 위탁함에 따른 비용은 연구개발비로서 세액공제 대상에 해당한다고 규정하고 있다. 이와 관련하여 원・피고가 다투는 "① 원고가 위탁한 용역이 연구개발용역에 해당하는지， ② (연구개발용역에 해당한다면) 수탁업체가 직접 연구개발용역을 수행하여야 하는지， ③ (재위탁에 따른 용역비가 공제대상에 해당한다면) 재수탁업체가 연구기관 또는 전담부서를 보유해야 하는지"가 문제 된다.

2) Whether research and development services are applicable

The former Restriction of Special Taxation Act does not have a separate definition on "research and development", but Article 9 (5) of the current Restriction of Special Taxation Act provides that research and development refers to activities to achieve scientific or technical development and to develop a new service and service delivery system. ① The service entrusted by the Plaintiff is an activity to achieve technical development by establishing a systematic and comprehensive system to achieve the realization of large financial business, enhance core business and service competitiveness, and optimal and efficient operation of information and communication technology, and ② The National Tax Service interpreted that "the electronic computer system development service entrusted by a domestic corporation that operates a department exclusively in charge of a financial insurance business constitutes a research and development service (Corporate Tax and Corporate Tax-675 on July 14, 201)", and ③ the Defendant excluded the service cost paid to the entrusted company on the premise that the service entrusted by the Plaintiff is a research and development service, and the term "new" or "new service" under Article 9 (5) of the current Restriction of Special Taxation Act is included in "new research and development service," but it is reasonable to interpret that it does not constitute "research or new research service".

3) Whether research and development expenses corresponding to the portion re-entrusted by the trustee are not subject to tax credit

In light of the principle of no taxation without law, or the requirements for non-taxation or tax reduction and exemption, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring special circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds (see Supreme Court Decision 2002Du6781, May 27, 2004).

In light of the above legal principles, considering the health stand and the following circumstances, it is reasonable to view that the research and development costs for the portion re-entrusted by the trustee constitute the tax credit for research and development costs.

① 구 조세특례제한법 제10조 제1항 제2호는 연구개발을 위한 비용 중 대통령령이 정하는 비용이 있는 경우 세액공제를 받을 수 있다고 규정하고， 같은 법 시행령 제9조 제2 항， [별표 6] 제1호 나목 ①，㉲에 의하면， 대통령령으로 정하는 비용의 하나로 "국내외기업의 연구기관(과학기술분야를 연구하는 경우에 한한다) 또는 전담부서에 기술개발 용역을 위탁함에 따른 비용"을 규정(이하 '이 사건 규정'이라 한다)하고 있는바， 문언 해석상 원고가 지출한 비용이 국내외 기업의 연구기관 또는 전담부서에 기술개발용역을 "위탁함에 따른 비용"에 해당하기만 하면 연구개발비 세액공제 대상에 해당하는 것이므로， 달리 "위탁함에 따른 비용"에 "수탁자가 이를 재위탁하는 경우 재위탁한 부분에 해당하는 비용은 제외된다"는 명문의 규정이 없는 이상 수탁업체가 재위탁한 부분 에 해당하는 연구개발비를 세액공제 대상에서 배제할 수는 없다.

② Under Article 6(2) of the Enforcement Decree of the Restriction of Special Taxation Act, the defendant asserts that the "entrusted manufacturing business under the OEM system as prescribed by the Presidential Decree refers to the business that produces and supplies products by sub-entrustments after being entrusted with the production by OEM system from the truster." Thus, if the research and development service is sub-entrusted, it should be excluded from the subject of tax credit. Then, since the trustee (trustee) is re-entrusted again to a third party, the concept of sub-entrustment can not be presented from the truster's perspective. 'Entrustment' and 'Re-entrustment' are different from the truster'. Since the subject is the truster and the subject of Article 6(2) of the Enforcement Decree of the Restriction of Special Taxation Act, the two provisions are different from that of the sub-entrustment, and the above two provisions are not included in the concept of "re-entrustment" in Article 6(2) of the Enforcement Decree of the Restriction of Special Taxation Act.

③ The Defendant asserts that, in light of the concept of entrustment and sub-entrustment as seen earlier, the trustee who received the “entrustment” may directly perform the services and perform the services entrusted to a third party, and that “the trustee shall also be deemed to include the expenses entrusted to a third party” under subparagraph 1 (b) (i) of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 23590), only by stipulating that “the expenses for research and development in the field of science and technology to be entrusted (including re-entrusted) to an institution, such as research institutes or dedicated departments of domestic or foreign enterprises, are included in research and development expenses corresponding to the sub-entrusted portion. Therefore, it is reasonable to deem that the above provision is a confirmatory provision.

(4) In determining whether to grant a tax credit for the portion entrusted to a third party under his/her own responsibility, excluding the tax credit for the portion entrusted to him/her by a trustee is against the principle of self-responsibility by having the truster take responsibility for the economic decision that he/she did not have himself/herself, and the truster imposes an obligation to deduct the portion entrusted to a third party by verifying the expenses corresponding to the portion entrusted by a daily trustee to a third party, and the taxpayer bears an obligation that does not exist under statutes

⑤ The legislative purport of the instant provision is to facilitate research and development by granting taxpayers more tax credits on investment in research and development expenses (see Supreme Court Decision 2000Du3115, Jan. 22, 2002). Since it is impossible for a single company to perform all research and development services depending only on its own human resources and technology as a convergence of technology development, it is inevitable to re-consign part of computerized development services to another company. Therefore, excluding research and development expenses equivalent to the portion re-deposited by a trustee from the subject of tax credits is an interpretation that does not take into account the legislative intent of the instant provision and the reality according to the trends of technology convergence.

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

In light of the legal principles as seen earlier, it is reasonable to view that the instant case constitutes a tax credit in cases where the re-entrusted company does not have a research institute or a dedicated department, and the following circumstances are comprehensively considered:

① The provision of this case provides that "expenses for the entrustment of technology development services to a domestic or foreign research institute or a dedicated department," and in the interpretation of the language, only if the expenses the plaintiff spent fall under the expenses for the entrustment of technology development services to a domestic or foreign research institute or a dedicated department, the expenses are eligible for the tax credit for research and development expenses, and the trustee company (a domestic or foreign research institute or a dedicated department) is not required to perform all the entrusted research and development services in its dedicated department, and may have another department or dedicated department (a dedicated department possessed by a dedicated department

② In the case of large-scale computer development services, the integration and linkage of individual systems is the core factor of development, and the trustee company is important for the plaintiff to perform the contract, repair liability, repair and repair liability, liability for delay of performance, liability for damages, etc. The provisions of this case stipulate the ownership of the dedicated department of the trustee company as the requirement of tax credit for research and development expenses. On the other hand, the trustee company is not directly responsible to the plaintiff, and the trustee company is ultimately liable to the plaintiff, and the trustee company is not obligated to hold the dedicated department even to the re-trustee company in tax credit for research and development expenses (the same applies to the case where the trustee company allows other departments than the dedicated department to perform part of the research and development services).

(3) It is difficult to deem that the Plaintiff, a truster, abused the provision on tax credit for research and development costs on the ground that the result of the performance of services constitutes research and development services, and that the research and development services were conducted under the consignment agreement with a trustee holding a dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated dedicated.

④ Meanwhile, Subparag. 1 (b) of the Enforcement Decree of the Restriction of Special Taxation Act [Attachment Table 6] amended by Presidential Decree No. 24368, Feb. 15, 2013; revised “research institutes or dedicated departments of domestic and foreign enterprises” as “research institutes or dedicated departments, etc. (limited to the portion directly performed by the relevant department, etc.)” in the instant provision, and explicitly excluded expenses for research and development services performed by the non-dedicated department of the re-entrusted enterprise from those eligible for tax credit (the foregoing amended provision applies from the first taxable year beginning January 1, 2013).

⑤ The Seoul High Court Decision 2010Nu25635 cited by the Defendant in the case of self-research and development is a matter of whether the expenditure (the personnel expenses of the staff employed by the department in exclusive charge, etc. prescribed by Ordinance of the Ministry of Strategy and Finance) constitutes a tax credit for research and development expenses, and the case of entrusted research and development differs from the case of the items, requirements, etc. subject to tax credit for research and development expenses. Therefore, it is inappropriate to invoke this case as it is [in the case of self-research and development, the personnel expenses of the department in exclusive charge (the personnel expenses of the staff of the department in exclusive charge) as the subject of tax credit for research and development expenses, and in the case of entrusted research and development, it is necessary to more strictly interpret the subject of tax credit than the entrusted research and development in the case of self-research and development, and it cannot be

3. Conclusion

The plaintiff's claim is justified and accepted.