Exemption from corporate tax, etc. on royalties on technical license

Where a person who provides technology obtains a confirmation of tax exemption by applying for exemption after the expiration of the period for application for tax exemption, the provisions on tax exemption shall apply only to the taxable year for which the application for exemption is filed and the remaining exemption period thereafter, but the amount of tax already paid before receiving the confirmation of

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

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1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The defendant's refusal on December 11, 2009 shall be revoked with respect to a claim for correction that the plaintiff exempted from corporate tax withheld on May 13, 2008 KRW 577,847,160 and changed due to refund.

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1. Details of the disposition;

(a) Conclusion of a technology introduction agreement;

On March 23, 2008, the Plaintiff entered into an agreement on the introduction of TPP production and purification facility design and related services from the Plant Plant (hereinafter referred to as the "Plant") located in the United States on March 23, 2008 (hereinafter referred to as the "instant technology introduction agreement") and made payment for the price as follows.

Until April 11, 2008: 2,490,000 Corresponding

Until May 31, 2008 after the transfer of technology in the second stage: 2,490,000 streets;

Until July 31, 2008 after the transfer of technology in the third stage: 2,490,000 streets;

When the technology transfer is completed at the fourth stage: 830,000 Correspos

Total : 8,300,000

(b) Payment of corporate tax withheld;

On April 10, 2008, when the Plaintiff paid the first deposit 2,490,000 Won to the non-party company, the Plaintiff withheld from the non-party company 373,500 Won (Korean 577,847,160 Won, hereinafter referred to as the "the corporate tax of this case") and the special collection resident tax amount to the sum of 37,350 U.S. and 410,850 U.S. on May 13, 2008, the corporate tax was paid to the head of Sungnam Tax Office and the resident tax was paid to the head of the party branch office, respectively.

(c) Claim for rectification;

(1) On August 18, 2008, the non-party company applied to the Minister of Knowledge Economy for exemption of corporate tax, etc. on the price of the instant technology introduction agreement pursuant to Article 121-6 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same). The Minister of Knowledge Economy confirmed that the non-party company is exempt from corporate tax, etc. on August 29, 2008.

(2) On November 3, 2009, the Plaintiff filed a request for correction on the ground that the corporate tax of this case already paid as of May 13, 2008 should be exempted.

(3) On December 11, 2009, the Defendant dismissed the Plaintiff’s claim for correction on the ground that the Plaintiff’s claim for correction on the ground that, prior to confirmation of tax exemption for royalties on technical license, the Plaintiff paid royalties and the withholding agent withheld the relevant tax and has already paid the royalties, it shall not be refunded pursuant to the proviso of Article 121-6(3) of the former Restriction of Special Taxation Act (hereinafter “instant legal provision”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, Gap evidence 2, Gap 2-5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) According to the proviso of the instant legal provision, a corporation that followed the Corporate Tax Act, etc. before being verified and paid corporate tax, etc., cannot be refunded corporate tax, etc. However, the said provision stipulates that corporate tax, etc. paid shall be refunded to a corporation that failed to pay corporate tax, etc. in violation of the Corporate Tax Act, etc., which is unfavorable to a corporation that did not pay corporate tax, etc., without reasonable grounds. As such, the said provision is null and void in violation of the principle of equality. Therefore, the instant disposition

(2) The non-party company filed an application for tax exemption on August 18, 2008, within one year after the conclusion of the pertinent technical license agreement. However, the non-party company did not refund corporate tax on the ground that it applied for tax exemption after April 10, 2008, which is the first payment date of royalties on the technical license as stipulated in Article 116-12(4) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010; hereinafter the same shall apply) (hereinafter referred to as “Enforcement Decree of this case”). Since the “the first payment date of royalties” stipulated in the Enforcement Decree of the instant technical license agreement, “the date arriving first from the date of the first payment date of royalties on the technical license agreement,” which falls short of the period from the date of concluding the relevant technical license agreement to the date of the first payment date of royalties on the technical license agreement, is prohibited from receiving benefits if it did not file an application for tax exemption within the said period.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Provisions of the statute

Article 121-6 (1) of the former Restriction of Special Taxation Act provides that "where a contract which introduces a high level of technology essential to enhance the international competitiveness of the domestic industry, which meets the standards as prescribed by the Presidential Decree, the corporate tax or income tax on royalties on the technical license that the person who provides the technology under such contract receives shall be exempted for 5 years from the date on which the first payment of the price is made under the contract," and Paragraph (2) provides that "where the person who provides the technology under a technology license agreement intends to obtain a tax exemption under paragraph (1), he shall apply for the exemption to the Minister of Strategy and Finance under the conditions as prescribed by the Ordinance of the Ministry of Strategy and Finance," and Paragraph (3) provides that the person who provides the technology under a technology license agreement shall apply for the exemption after the expiry of the time limit for application for tax exemption under paragraph (2). In this case, the provisions of paragraph (1) shall apply only to the taxable year for which the person applied for the exemption and exemption and the remaining exemption period after it is confirmed under paragraphs (1) and (2)."

In full view of the above provisions, in order to be exempted from corporate tax, etc. on royalties on technical license under Article 121-6 of the former Restriction of Special Taxation Act, the applicant for exemption from taxation shall be applied to the Minister of Strategy and Finance for confirmation of exemption from taxation, and if not,

(2) Whether the proviso to the instant legal provision is unconstitutional or not

(A) Upon the amendment of the Restriction of Special Taxation Act on May 24, 1999, Article 121-6 was newly established, and introduced the system for tax exemption for royalties. At the time, the application for tax exemption was excluded by itself after the expiration of the application period for tax exemption. Following the amendment of the Restriction of Special Taxation Act on December 29, 200, this case’s legal provision was newly established, and where the provider of technology obtains the confirmation of exemption by applying for tax exemption after the lapse of the application period for tax exemption, the provision on tax exemption shall apply only to the taxable year applying for the relevant exemption and the remaining exemption period thereafter, and the previous provision that the amount of tax already paid prior to receiving the confirmation of exemption shall not be refunded. The previous provision provides that even if the exemption of the tax exemption itself was made after the expiration of the application period for tax exemption, it would allow the taxpayer to be granted tax exemption for the subsequent

In addition, preferential measures for tax reduction and exemption are against the principle of tax equality and the waiver of financial resources of the State or local governments, and it is not desirable to suppress as much as possible and expand the scope thereof. In light of the fact that, in particular, if necessary to achieve the policy objective, the requirements of the person who receives the benefit of tax exemption should be strictly limited and exceptionally permitted within extremely limited limits, the tax exemption system stipulated in Article 121-6 of the former Restriction of Special Taxation Act is within the scope of the broad legislative discretion of legislators, and therefore, discrimination due to such act is justified insofar as the legislators set the requirements for

(B) In light of the fact that the corporate tax withheld at the time of paying the revenue amount, and the amount of tax is determined without any special procedure, in order to be exempted from taxes, such as corporate tax, the tax exemption cannot be obtained by filing an application for tax exemption, and if not, the corporate tax paid by the Plaintiff, the corporate tax withholding agent prior to the confirmation of tax exemption under the instant technology introduction agreement, cannot be deemed as a case exceeding the tax base and tax amount to be reported under the tax law (if corporate tax was paid after the confirmation of tax exemption, it may be refunded because it exceeded the tax base and tax amount to be reported under the tax law if the corporate tax was paid after the confirmation of tax exemption), and the corporate tax exemption benefits, etc. shall be granted only to the period after the confirmation of tax exemption, in violation of the Corporate Tax Act, etc., by reflecting the nature of the tax exemption system, requirements for tax exemption exemption, etc., and thus, it cannot be deemed that there is arbitrary discrimination.

(C) Sub-determination

Since the proviso to the legal provision of this case does not violate the principle of equality, this part of the plaintiff's assertion is without merit.

(3) Whether the enforcement decree of this case is unconstitutional or unlawful

In order to be exempt from taxes, such as corporate tax, there is a need to determine whether to grant exemption prior to the establishment and determination of corporate tax, etc., because the corporate tax, etc. is not necessarily applied for exemption, and in the absence thereof, it is necessary to determine whether to grant exemption prior to the establishment and determination of corporate tax, etc., and the corporate tax withheld is established at the time of payment of the revenue amount, and the amount of tax is determined without special procedures. Therefore, it is reasonable and reasonable to set the first payment date of royalties on which corporate tax is established and determined as one of the application periods for exemption from taxes. Therefore, the Enforcement Decree

This part of the plaintiff's assertion is without merit.

3. Conclusion

The plaintiff's claim of this case is dismissed as there is no reasonable ground.

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Related Acts and subordinate statutes

former Restriction of Special Taxation Act (Amended by Act No. 9921, Jan. 1, 2010)

Article 121-6 (Exemption from Tax on Technical License Royalties)

(1) Where a contract which introduces a high level technology essential for strengthening the international competitiveness of the domestic industry, which meets the standards prescribed by the Presidential Decree, is concluded, the corporate tax or income tax on royalties on the technical license that the person who provides such technology under the terms and conditions of the relevant contract receives shall be exempted for five years from the date (limited to the case before December 31, 2009) on which he/she first agrees to pay

(2) Where a provider of technology under a technology introduction contract intends to be exempted from taxes under paragraph (1), it shall apply for exemption from taxes to the Minister of Strategy and Finance, as prescribed by Ordinance of the Ministry of Strategy

(3) Where the licenser providing the technology under a technology license agreement obtains a confirmation of tax exemption under paragraphs (1) and (2) by applying for exemption after the expiry of the time limit for application for tax exemption under paragraph (2), the provisions of paragraph (1) shall apply only to the taxable year wherein the relevant application is filed and the remainder of exemption period thereafter. In this case, where there exists any tax amount already paid by the licenser providing the technology under a technology license agreement prior to receiving the confirmation of exemption under paragraphs (1) and (2), the relevant tax amount shall not

Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 22037, Feb. 18, 2010)

Article 116-12 (Standards, etc. for Tax Exemption for Technical License Royalties)

(1) The term "contract meeting the standards prescribed by the Presidential Decree" in Article 121-6 (1) of the Act means a technology introduction contract under the Foreign Investment Promotion Act which is determined by the Minister of Strategy and Finance through deliberation by the Foreign Investment Investment Committee under Article 27 of the Foreign Investment Promotion Act, and meets the standards referred to in each subparagraph of Article

(2) Where the Minister of Strategy and Finance receives an application for tax exemption under Article 121-6 (2) of the Act, he shall confirm whether to exempt it after reviewing within 20 days whether the relevant technology meets the standards of paragraph (1), and notify the applicant thereof. In this case, where it is confirmed that it is not subject to tax exemption, he shall clarify

(3) Where it inevitably requires a long period of time in confirming whether to exempt under paragraph (2), the Minister of Strategy and Finance may extend such a review period within the limit of 20 days. In this case, he shall notify the applicant of the relevant reasons and review period.

(4) An application for the tax exemption under Article 121-6 (2) of the Act shall be made within the date arriving first between 1 year from the date of concluding the relevant technical license agreement and the payment date of royalties on the technical license.