early 208Gu1372 (Law No. 96.30)

It is not limited to the use of plant equipment technology, but the provision of plant equipment itself, so it cannot be viewed as usage fee income.

The Plaintiff’s supply of plant equipment technology is itself an plant, not a person who receives the supply of plant equipment technology, but does not use the equipment technology, the service cost was calculated by adding an ordinary profit to the cost, and the confidentiality provision of the contract is difficult to be deemed as a confidential protection provision for the equipment technology, and thus cannot be deemed as the royalty income.

The contents of the decision shall be the same as attached.

Article 93 (Domestic Source Income)

1. The defendant's refusal to correct the corporate tax of KRW 367,080,493 against the plaintiff on February 21, 2008 shall be revoked.

2. The litigation costs shall be borne by the defendant.

It is the same as the disposition.

1. Circumstances of the disposition;

A. In relation to the establishment of factory facilities of chemical, oil, and other industries, the Plaintiff formed a consortium with the German corporation that operates a business that operates the design, implementation, and completed industrial facilities of the project, and entered into a contract for the construction of the so-called “instant contract” (hereinafter referred to as the “instant contract”). The Plaintiff entered into a contract for the construction of the so-called Cke Coke Coke Coke plant (hereinafter referred to as the “instant contract”).

B. The Plaintiff was responsible for the supply of overseas facilities under the instant contract, and was paid 35.600.000 00 000 000 000 28.360.00 00 00 0,000 3,997,500 3,242,500 engineering services for domestic production, and 37,300,300,000 10,000 10,000 10,000.

C. The Plaintiff received the payment of KRW 1,621,250 (which is equivalent to KRW 2,016,883,638), 50,00 (which is equivalent to KRW 2,016,883,638), which is 50% of the cost of providing engineering services for domestic production (hereinafter referred to as “instant services”) among the terms and conditions of the instant contract from △△, 2007. The Plaintiff received KRW 1,621,250 (which is equivalent to KRW 2,021,01,61,613), which is 50% remaining 50% of the remainder on the 21st of the same month. The △△△ applied the withholding tax rate of KRW 10,688,351, and KRW 202,10,149, respectively, on the ground that the payment of the instant service was made in the interest of the user income.

D. On November 16, 2007, the Plaintiff filed a request for correction to the Defendant for refund of KRW 367,080,493, the corporate tax amount of the resident tax excluding the resident tax, on the ground that the service price in this case cannot be withheld at home as business income, not the usage fee, but the business income, but the Defendant was defined as the usage fee and refused the Plaintiff’s request for correction (hereinafter “instant disposition”).

E. The plaintiff appealed and requested a judgment on April 15, 2008, but the Tax Tribunal dismissed the above judgment on 30th 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4, Eul evidence 1-1, 2, Eul evidence 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties’ assertion

(1) The plaintiff's principal

Since the Plaintiff did not transfer or transfer any know-how in the provision of the instant service to △△, this case’s service cost constitutes the price for personal services, not the royalty income, and thus, the Defendant is not entitled to impose tax on the Plaintiff who did not have a permanent establishment in Korea pursuant to the Agreement on the Avoidance of Double Taxation between the Republic of Korea and the Federal Republic of Germany (hereinafter referred to as the “Korea-Japan Tax Agreement”).

(2) The defendant's assertion

The Plaintiff’s purchase of the instant service from the Plaintiff was the provision of a specialized design and drawings that was made by utilizing the know-how and experience in the business with respect to the manufacturing of Coke Oven facilities, and the human service related thereto is no longer auxiliary and incidental. Therefore, the instant remuneration for the instant service should be deemed as income.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

As a result of the examination of the technical status of each company and the operational status of the Coke Ov supplied by each company in consideration of the promotion of the plaintiff company's competitive bidding with the Seoul Special Self-Governing Province (hereinafter referred to as the "Seoul Special Self-Governing Province") in order to extend the package factory OV, the Seoul Special Self-Governing Province in terms of the supply price of the Coke Ov. However, the design work for the range of developing companies has been mainly in place of technical cooperation with other companies, and it is not possible to take the technical leave with other companies at present. Although construction experience for the small range of 4 to 5 meters high, there is no experience in construction with 6.7 meters high-level distance, such as the Seoul Special Metropolitan City Coke V, but it is difficult for the plaintiff to take into account that there is a lack of understanding about the existing Coke V in the construction process from the time of the expansion of construction of the term "Coke," and that it is difficult for the plaintiff to take into account the fact that there is a lack of experience and difficulty in the construction process of construction work.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 2, the purport of the whole pleadings

D. Determination

Article 93 subparagraph 6 of the former Corporate Tax Act (amended by Act No. 8831 of Dec. 31, 2007) provides that income generated from the provision of personal information prescribed by Presidential Decree in the Republic of Korea; subparagraph 9 of the same Article provides that copyright, patent rights, trademark rights, designs, models or drawings of scientific or artistic works (including motion picture films) or secret formula or processes, films and tapes or other similar rights, or information or know-how on industrial, commercial or scientific knowledge and experience or know-how in the Republic of Korea, for the use of such information or know-how in the Republic of Korea, the relevant price and the income generated from the transfer of such assets, information or rights are one type of domestic source income from which a foreign corporation is liable to pay corporate tax; Article 7 of the Korea- Germany Tax Convention provides that if an enterprise does not conduct its business in the other Contracting State through a permanent establishment; that enterprise's license for use; that enterprise's license for industrial or commercial activity can only be imposed on the other Contracting State's royalties or new information;

In general, in order for the instant service cost to constitute a royalty income, it must include technical information that is not disclosed to the design and drawing, that is, know-how, and △△ has to receive and use know-how through the supply of the said design and drawing.

However, according to the terms and conditions of the contract of this case, it is difficult to see that the plaintiff's disposal of the service of this case was based on the above design or drawings for Coke OV, and that the plaintiff's disposal of the service of this case is more likely to use the service of this case for the purpose of the contract of this case, and that the plaintiff's disposal of the service of this case is more likely to use the service of this case for the purpose of the contract of this case. According to the above terms and conditions of the contract of this case, it is difficult to see that the plaintiff's disposal of the service of this case is more likely to use the service of this case for the purpose of the contract of this case. The plaintiff's disposal of the service of this case is more likely to use the service of this case for the purpose of the contract of this case. The plaintiff's disposal of the service of this case is more likely to use the service of this case for the purpose of the contract of this case, and it is difficult to see that the plaintiff's usage of the service of this case is more likely to use of the service of the contract of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.