The revocation of revocation of the imposition of customs duties, etc. by the Gwangju District Court 209Guhap47

○○ Pharmaceutical Co., Ltd.

The head of Gwangju Customs Office

December 10, 2009

1. The Defendant’s disposition of imposing customs duties of KRW 782,880, value-added tax of KRW 1,282,720, and additional duties of KRW 413,110 against the Plaintiff on December 26, 2007 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On April 15, 199, the Plaintiff entered into a contract with Da○○○○ (D○ Co. Ltd.) (hereinafter “the instant drug”) to pay US$600,000 (hereinafter “the instant license contract”) under the condition that the Plaintiff shall be granted a right to monopoly sale in Korea by manufacturing and selling the instant drug (hereinafter “the instant drug”) with the main ingredient located at Da○○○○ (D○ Co. Ltd.) located at Da○ on April 15, 199, and the customs collector was not included in the customs value of 60,000 US dollars paid to Da○○○ upon filing the import declaration of Madrid from 2002, and the customs collector accepted the instant royalty as it is.

B. On December 26, 2006, the Defendant added the royalty of this case to the customs value of Maduri, the amount adjusted by the ratio of the manufacturing cost of the finished product to the import price of the product in comparison with the product at issue (hereinafter “the fixed amount of this case”) *******--05-********* on December 29, 2006 after the prior notice procedure of taxation prior to December 26, 2007, after adding the customs duty of 25,249,50 won, value-added tax41,370,340 won, additional tax of 13,192,050 won to the total amount of 79,81,890 won to the first half of the tax Tribunal (hereinafter “the first half of the tax Tribunal”) and the second half of the tax Tribunal dismissed the Plaintiff’s claim for the correction of the customs duty amount of 13,192,050 won and the second half of the tax Tribunal.

D. According to the above decision of the Tax Tribunal, the defendant, from August 1, 2003 to November 29, 2006, revised and notified the amount of the instant adjustment to KRW 782,880, value-added tax, KRW 1,282,720, and penalty tax to KRW 413,110 on July 23, 2009.

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The Plaintiff’s assertion (A) First, the license agreement is not a master-prine, but a license agreement for the instant medicine using the master-prine. The instant royalty is not related to the master-prine, but is not paid as the terms and conditions of the master-prine’s trade, and thus should not be added to the customs value.

(B) Second, the amount of conciliation in the instant case shall be distributed in proportion to the entire amount of the import declaration during the period from April 15, 1999 to March 8, 201, the contract term of the instant license agreement.

(2) The defendant's assertion (A) First, the royalty of this case was paid not only to the Madrid but also to the terms and conditions of the Madrid's trade.

(B) Second, since the license agreement of this case can either be terminated or automatically extended, and the contract period cannot be determined, and thus, it is impossible for the Defendant to impose a pro rata distribution taxation, and the Defendant re-revision the instant adjustment amount by dividing it into the import declaration portion until December 12, 2006 with the consent of the Plaintiff employees, in accordance with the case where Article 3-3 (Additional Method of Production Support) Item 1 of the Notice on Determination of Dutiable Value of Imported Goods (hereinafter “Notice of Dutiable Value”) applies, the instant disposition is lawful.

B. Relevant statutes

In full view of the purport of the pleadings as a whole in the statement No. 3 of the Plaintiff’s argument, the Plaintiff and Da○○ Company, under the license agreement, shall designate the Plaintiff as the exclusive licensee in the Republic of Korea for the instant medicine, and shall grant the Plaintiff the right to exclusively use the trademark (G○○, Ga○○, and Do○) and information within the Republic of Korea for the purpose of selling the instant medicine by manufacturing and using the instant medicine within the Republic of Korea (hereinafter “instant patent”). In full view of the determination of the Plaintiff’s first assertion (A) on the Plaintiff’s assertion, it is recognized that the Plaintiff agreed to pay the royalty for the instant patent to Da○○○○ in return for that agreement, and thereafter, it shall be examined whether the royalty for the instant patent and the instant trademark are related to Ma○○.

2) Article 19(3) of the Enforcement Decree of the Customs Act provides that, when the royalty is paid for the right of patent, imported goods are patented inventions, or parts, raw materials, or components of goods to be produced by the patent in Korea, which are themselves embodied with the patent in whole or in part, the royalty shall be deemed to be related to the pertinent goods. In full view of the whole purport of pleadings, the patent of this case includes the patent of "Maglas, its manufacturing methods, and pharmaceutical products (the instant pharmaceutical products) containing Maglas," and most ingredients constituting the instant pharmaceutical products are Maglas, and it is recognized that the fact that most ingredients constituting the instant pharmaceutical products are Maglas, and in light of the purport of each of the facts and arguments and the whole arguments, it constitutes raw materials of the instant pharmaceutical products that are themselves patented inventions and products produced by the patent, and thus, the portion of the royalty paid by the Plaintiff with respect to the patent of this case constitutes a part or whole of the pertinent pharmaceutical products related to Maglas.

3) In addition, Article 19(3) of the Enforcement Decree of the Customs Act provides that when the royalty is paid for the right of trademark, the royalty shall be deemed to be related to the pertinent goods in the case where a trademark is attached to an imported product or a trademark is attached to a trademark after minor processing, such as dilution, mixture, classification, simple assembly, and packing. In light of the facts as seen earlier, most of the ingredients constituting the instant medicine are maternity, and in light of the overall purport of the facts recognized and arguments, it cannot be said that the royalty paid to the Plaintiff for the trademark right (G○ and Ga○○) of the instant medicine, the portion of the royalty paid to the Plaintiff for the trademark right (G○○ and Ga○○) of the instant medicine is also related to Maduri.

(B) The determination of whether the royalty was paid as the transaction terms of the goods in question, and the determination of whether the royalty was paid as the transaction terms of the goods in question should be made based on whether the purchaser has the right to purchase the goods in question, and in full view of the purport of the entire argument in the statement of No. 3, it is recognized that the Plaintiff agreed to purchase all the hairs necessary for the production of the instant medicine from the Da○○○○○. In light of the above fact-finding and the purport of the entire argument, in light of the above fact-finding and the purport of the argument, it is deemed that the Plaintiff did not have the right to purchase the Madrid, and thus, the royalty in question constitutes a case where the Madrid was paid as the transaction terms of the Madrid.

(C) Sub-decisions

Therefore, since the royalty of this case was paid not only in relation to the Madrid but also as the terms and conditions of the Madrid, the prior plaintiff's assertion is rejected on a different premise.

(2) We examine the plaintiff's second argument. Article 3-4 (Methods of Calculating Fees for Use of Right) 4 of the former Notice on the Determination of Dutiable Value of Imported Goods (amended by Presidential Decree No. 2008-33, Oct. 1, 2008; Presidential Decree No. 2008-33, Oct. 1, 2008) of the former Notice on the Determination of Dutiable Value of Imported Goods (amended by Presidential Decree No. 2008-33, Oct. 1, 2008; Presidential Decree No. 20060, Oct. 1, 2008; Presidential Decree No. 20130, Oct. 1, 2008; Presidential Decree No. 20130, Oct. 2, 20

In regard to this, the defendant asserts that the adjusted amount of this case can be added by analogy of Article 3-3, which provides that the cost of production support may be added to the taxable price en bloc or proportionally according to the taxpayer's choice. However, the interpretation of tax laws and regulations shall be interpreted in accordance with the principle of no taxation without the law unless there are special circumstances, and it shall not be permitted to expand or analogically without reasonable grounds. Thus, even though Article 3-4 of the former Public Notice of Dutiable Value does not provide for the same selection as Article 3-3 of the Public Notice of Dutiable Value for the production cost, prior to the time of imposing the additional duty according to the addition of the fixed value of this case is illegal because it is an expansion interpretation or analogical interpretation that is not allowed under the principle of no taxation without the law (as alleged by the defendant, there is no evidence to prove that the plaintiff employee consented thereto). The defendant's above assertion is rejected.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.