Seocho 2012west 1281 (2012.05)

Whether it is possible to grant tax credits depending on whether the trustee has exclusive department

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 constitutes the tax credit cost even if the re-entrusted company does not hold the exclusive department, if the entrusted company holds the exclusive department.

2012Revocation of revocation of disposition imposing corporate tax

2012Guhap31892 (Joint) Corporate Tax Imposition

2012Guhap32369 (Joint) Corporate Tax Imposition

2012Guhap32536 (Joint) Corporate Tax Imposition

2012Guhap38428 (Joint) Corporate Tax Imposition

2012Guhap40834 (Joint) Corporate Tax Imposition

1.AAA 2.BBBB Co., Ltd.

3.CCC Inc. 4.DDDC Co., Ltd.

5.E Banks 6.FFFFF;

1.The Head of Yeongdeungpo-gu Tax Office; 2.Cynam-gu Tax Office;

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 director of the tax office on February 11, 201 against the plaintiff A. 2, 201 (hereinafter referred to as the "Plaintiff A. 2") on the plaintiff 2, A. 2, 201 to 3, 200, 200, 200, 200, 30.0, 2, 30, 206, 30, 20, 2010, 206, 2, 30, 30, 201, 20, 200, 206, 30, 20, 200, 206, 20, 30, 206, 20, 30, 20, 20, 30, 200, 20, 206, 30, 206, 20, 201, 30, 201, 300.

1. Details of the disposition;

A. Plaintiff AA (2012Guhap29509)

1) Plaintiff AA, a domestic corporation operating a securities business, filed a claim 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 for research and human resources development expenses under Article 10 of the Restriction of Special Taxation Act, with the head of Yeongdeungpo Tax Office, and the head of Yeongdeungpo Tax Office decided to refund the amount equivalent to the above corporate tax on February 20, 209.

2) On December 1, 2007, Plaintiff AA entered into a contract with GGGGGGG Co., Ltd. (hereinafter referred to as “GGGGG”) that owns a department exclusively in charge of technological development and entrusted “development of the next generation IT system” service. Under the above contract, Plaintiff AA paid OOG to GGG research and development expenses.

3) Under Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008), Plaintiff AAA 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 entrusted with the research and development services to rectify the tax credits for the part re-entrusted to part of the business when it was regularly audited by the Defendant Young-gu Director of the Seoul Regional Tax Office. Accordingly, on February 11, 2011, the director of the Seoul Regional Tax Office corrected and notified the corporate tax OOOOO on April 1, 2007 or March 31, 2008 to the Plaintiff AAA for the business year from April 1, 2007 to April 1, 2009 to March 31, 2010.

5) On May 11, 201, Plaintiff AA 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 company located in a research institute or a department exclusively in charge of research and development expenses, out of the research and development expenses that is re-entrusted by a third party, should be recognized as subject to the tax credit for the research and development expenses” by the head of the tax office of the Defendant, Young-gu, the amount excluding the amount subject to the tax credit for the research and development expenses and human resources development expenses, which is performed by the company holding a research institute or a department exclusively in charge of research and development expenses from the OO (supply) of the re-entrusted research and development expenses, shall be subject to the tax credit for the pertinent business

6) Accordingly, on June 19, 2012, the head of the defendant Youngpo Tax Office: (a) reduced or corrected OOOO(s) from the corporate tax on April 1, 2007 to March 31, 2008; (b) notified OOO(s) and OOO(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(i.e., corporate tax on the corporate tax on the business year from April 1, 2007 to March 31, 2008; (c)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(31)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s)(s).

B. Plaintiff BBB (2012Guhap31892)

1) Plaintiff BBB, a domestic corporation that runs insurance business, entered into a contract with multiple entrusted companies, including HHHH (HH), 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 retirement pension independent system.

2) Plaintiff BBB paid the aggregate amount of research and development expenses to the trustee company under the above contract (from April 1, 2007 to March 31, 2008: OO, 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 (amended by Act No. 8827, Dec. 31, 2007; Act No. 8827, Apr. 1, 2008 to April 31, 2008; and the aggregate amount of corporate tax paid by the former Restriction of Special Taxation Act (amended by Act No. 8130, Apr. 26, 2008 to April 31, 2008) by applying Article 301 of the Act on the Tax Credit for Research and Development Expenses for the business year.

3) The head of the Defendant Southern District Tax Office, among the research and development expenses OOO members, shall not directly perform research and development expenses and shall not perform it to a third party (OOOO members from April 1, 2007 to March 31, 2008: from April 1, 2008 to March 31, 2009:OO members, from April 1, 2008 to March 31, 2009: OO members), deemed that the expenses are not subject to the tax credit, and corrected and notified the Plaintiff BBB of March 11, 201 to the effect that the expenses were not subject to the tax credit.

4) On June 2, 2011, Plaintiff BBB, dissatisfied with it, filed an objection and filed an appeal with the Tax Tribunal on September 21, 201. 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 in charge, out of the research and development expenses that the entrusted company re-entrusted to a third party, should be recognized as subject to the tax credit” by the head of the tax office of South Korea on the ground that “the cost re-entrusted to a company having a department in charge, out of the research and development expenses paid by the entrusted company, should be recognized as subject to the tax credit.”

5) Accordingly, on August 2, 2012, the head of the defendant Nammun District Tax Office: (a) reduced or corrected the number of OOO directors from the corporate tax on April 1, 2007 to March 31, 2008; (b) notified OO directors from the corporate tax on March 31, 2008 to the corporate tax on March 31, 2009; and (c) notified OOO directors (additional additional dues) and OO directors (additional additional dues) of the corporate tax on corporate tax on March 11, 2011 (hereinafter referred to as the “OO directors”) (i.e., remaining reduced and exempted OO directors from the corporate tax on April 11, 2007 to 31, 2008 (i.e., "O. 201 to 300O. 408).

C. Plaintiff CCC (2012Guhap32369)

1) On May 30, 2008, Plaintiff CCC (IIIC Co., Ltd.), a domestic corporation operating an insurance business, entered into a contract with the JJJJJ (hereinafter referred to as “JJJJ”) under which Plaintiff CCC (CCC Co., Ltd.) owned a department exclusively dedicated to the modification and entrusted the establishment of a general insurance system with the JJJJJJ (hereinafter referred to as “JJJJ”) and paid OOO as research and development costs to the JJJJJJ.

2) Plaintiff CCC 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 a loss carried forward during the business year from April 1, 2008 to March 31, 2009, and 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 filed a request for correction by adding the amount equivalent to the above corporate tax amount to the deductible tax reduction and exemption amount of corporate tax for the business year from April 1, 2009 to March 31, 2010, with the tax credit for the above research and development expenses with the head of Defendant CCC’s final tax office.

4) On December 29, 2010, with respect to the Plaintiff CCC, the chief of the tax office: (a) on the ground that the aforementioned research and development costs constituted the costs re-entrusted to a third party by the JJJJJ and thus does not constitute a tax credit; (b) on the ground that only the corporate tax is deducted and refunded; and (c) on the remainder of the OOOO members (=OOO members - OOO members), the chief of the tax office rejected filing a claim for correction against the Plaintiff CCC.

5) On March 25, 2011, Plaintiff CCC filed an objection, and filed an appeal with the Tax Tribunal on October 5, 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 for the business year from April 1, 2009 to March 31, 2010, on the ground that “the cost re-entrusted to a company having a research institute or a department exclusively in charge, out of the research and development costs that the consigned company re-entrusted to a third party, should be recognized as eligible for the tax credit,” and the JJJ dismissed the decision to reject the remainder of the appeal.

6) Accordingly, with respect to the Plaintiff CCC on July 11, 2012, the head of Defendant CCC granted the tax credit for the re-entrusted research and development institute to the company having a dedicated department, the head of Defendant CCC reduced or corrected the corporate tax amount from April 1, 2009 to March 31, 2010, and refunded the amount (hereinafter referred to as the "disposition 3").

D. Plaintiff DDR (2012Guhap32536)

1) The Plaintiff, a domestic corporation that runs insurance business, entered into a contract with KKKK Ltd. (hereinafter referred to as “KKK”), holding a department exclusively in charge, from April 1, 2007 to March 31, 2008, to the business year from March 31, 2008, to the business year from April 1, 2008, to the business year from March 31, 2009, to entrust research and development of electronic computer systems, such as the extension of joints and network improvement.

2) According to the above contract, Plaintiff DDR paid OO (OO on April 1, 2007 through March 31, 2008: OO, from April 1, 2008 to March 31, 2009: OOO for the business year: from March 31, 2009; for the business year from April 1, 2007 to March 31, 2008, it applied the Restriction of Special Taxation Act (amended by Act No. 8827, Dec. 31, 2007); for the business year from March 31, 2008, it applied the tax credit for research and development expenses to the former Special Taxation Act (amended by Act No. 8827, Apr. 1, 2008 to 30, 2008; 201,000,0000,000) for the business year from March 31, 2009.

3) The head of the Defendant Southern District Tax Office, on December 1, 201, deemed that the research and development expenses are not subject to the tax credit and notified Plaintiff DDDDC of the expenses paid by re-entrustment to a third party without performing the said research and development expenses (OOOOOwon from April 1, 2007 to March 31, 2008: OOOOwon, from April 1, 2008 to March 31, 2009:OOOwon) as the expenses were not subject to the tax credit, and thus, revised and notified Plaintiff DDDDC of the corporate tax for the business year from April 1, 2007 to March 31, 2008, and the corporate tax for the business year from April 1 to March 31, 2008 to March 31, 209.

4) On January 5, 2012, Plaintiff DDR appealed, 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 re-entrusted to a company holding a department in charge of research and development expenses from among the research and development expenses that the entrusted company re-entrusted to a third party by a third party shall be recognized as subject to the tax credit for research and development expenses” shall be subject to the tax credit for the amount re-entrusted to a company holding a department in charge of research and development expenses from among the OO expenses re-entrusted by KK to a third party, but the amount corresponding thereto shall be re-entrusted and corrected according to the results thereof.”

5) Accordingly, on August 10, 2012 after conducting a reinvestigation, the head of the Defendant South Korea Tax Office refunded the Plaintiff DDDDC’s revised and notified as above to the Plaintiff on April 1, 2007 through March 31, 2008, the OOO on April 1, 2008 through March 31, 2009 (hereinafter “OOO disposition”) out of the corporate tax for the business year from March 31, 2009, respectively (hereinafter “the remaining amount refunded”) (i.e., December 1, 2011 to March 31, 2008 (i.e., OO - OOO - OO 4.30 on April 1 through 2031, 208).

EEE Bank (2012Guhap38428)

1) Plaintiff EE Bank, a domestic corporation carrying on financial business, entered into a contract with multiple trustees, such as GGG and other companies having 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 trustee companies.

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 Act (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, the research and development expenses under Article 10 of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008) for the business year of 205, the corporate tax OOO, the corporate tax OOO, and the corporate tax OOOO

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 the tax credit, and notified the director of the Nam-gu Tax Office of this point.

4) As a result, on December 10, 2010, the chief of the Defendant Nammun District Tax Office issued a correction and notification of the KRW OO (OOO) corporate tax for the business year 2005 and KRW OO(OO(OOO) for the business year 2007. In addition, the chief of the Defendant Nammun District Tax Office corrected that the OO(OO) was deducted from the tax amount to be refunded to the Plaintiff EEE bank due to any other reasons for correction as to the amount excluded from the tax credit amount of corporate tax for the business year 2008, which excludes research and development expenses from the corporate tax for the business year 2008. On March 9, 2011, the Defendant Southern District Tax Office corrected that the Plaintiff EE bank requested the refund by adding the above OOO to the deductible reduction and exemption amount, but rejected on March 25, 2011.

5) On March 9, 2011, Plaintiff EE Bank dissatisfied with the disposition of imposition of corporate tax for the business year of 2005 on the part of the OOO members in charge of corporate tax for the business year of 2005 and the part of the OO members in charge of corporate tax for the business year of 2007, and filed an appeal with the Tax Tribunal on April 19, 201, against the disposition of rejection of the above disposition of correction. On June 27, 2012, the Tax Tribunal decided on the amount of tax credit for the pertinent business year on the grounds that the expenses re-entrusted by the entrusted company to a business with a research institute or a department in charge of research and development from among the research and development expenses paid by the entrusted company to a third party is reasonable to recognize the expenses subject to the deduction of research and development expenses.

6) Accordingly, the head of the defendant South Korea District Tax Office recognized the tax credit for research and development expenses re-entrusted to an enterprise having a dedicated department, and notified the amount of OOOOOO (additional OO) of corporate tax in the business year 2007 and the amount of OOO (additional OO) of the refund of corporate tax and the amount of additional OOO (additional OO) (hereinafter referred to as "OOO(additional) of the imposition of corporate tax in the business year 2005, Dec. 10, 2010, the portion of the imposition of the corporate tax in the disposition of OOO(207, Dec. 10, 2007, the amount of the imposition of the corporate tax in the business year 2007, the amount of OOO(OOO) reduced and corrected the amount of the corporate tax in the business year 2007 (i.e., the amount of the imposition of the corporate tax in the business year 2007, 205).

F. Plaintiff F (2012Guhap40834)

1) Plaintiff F, a domestic corporation that runs the financial business and the distribution business of agricultural and livestock products, entered into a contract with multiple trustees, such as GGGGGG, etc., with a dedicated department from January 2008 to December 2009, to entrust the establishment of an electronic computer system.

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

3) On December 5, 2011, the head of the Defendant Southern District Tax Office revised and notified the corporate tax for the business year 2008 and the corporate tax for the business year 2009 on the Plaintiff FF as it did not fall under the tax credit for research and development expenses. The Defendant Southern District Tax Office, among the above research and development expenses OOOO members, did not directly perform it to a third party (OOOO members for the business year 2008, 2009, OOOF members for the business year 2009.

4) On March 5, 2012, Plaintiff F, who is dissatisfied therewith, 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 a department in charge) by the Plaintiff FF for the pertinent business year, and correcting the tax amount for the pertinent

5) Accordingly, on October 5, 2012, the director of the defendant Nam-gu Tax Office reduced and corrected the amount of OOOOO on the part of the corporate tax for the business year 2008, and notified the amount of OOOO (additional for additional dues on the part of the corporate tax for the business year 2009; hereinafter the same shall apply) of the disposition of OOOOO(=OOOOO 6) of corporate tax for the business year 2008 as of December 5, 2012; hereinafter the same shall apply.

[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) Claim by the director of the tax office and the director of the tax office in South Korea

BBB, the CCC did not reveal whether the cost for the entrustment of research and development services claimed by the BBB, and the CCC was used for research and development activities.

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, Plaintiff BBBBBB andCC's entrusted services are activities to achieve technical development by establishing a systematic and comprehensive system to achieve the optimal operation and efficiency of information and communications technology, and the National Tax Service interpreted that "the aforementioned research and development services entrusted by a domestic corporation that runs a financial insurance business" fall under research and development services entrusted by a patent-related company, and that "the Patent-BCC Tax Service" should not be recognized as those entrusted by the patent-related Director of the Korea Tax Service, based on the premise that the aforementioned research and development requirements are not met."

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.