Seoul Administrative Court-2016-Gu Partnership-83860 ( November 24, 2017)

Disposition Rejecting Corporate Tax Correction

Where a patent right is registered in a foreign country and it is not registered in the Republic of Korea, income received in relation thereto cannot be paid for the use thereof, and thus, it cannot be deemed domestic source income, and it does not constitute other income.

Article 93 of the Corporate Tax Act; Articles 2, 6, and 14 of the Korea-U.S. Tax Convention; Article 28 of the Adjustment of International Taxes Act

2017Nu8543 Revocation of Disposition of Rejecting Corporate Tax Correction

□●○◇□ 홀딩스 인크

○ Head of tax office

Seoul Administrative Court Decision 2016Guhap83860 decided November 24, 2017

on October 28, 2019

on 18, 2019

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim against that part shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this court's decision is as follows, since the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance, except for dismissal or addition of the corresponding parts of the judgment of the court of first instance, it shall be quoted in accordance with Article 8 (2) of the Administrative Litigation Act

The part of '3-A.' among the 0-3-4 pages is as follows.

A. The latter part of Article 93 subparag. 8 of the former Corporate Tax Act (amended by Act No. 1355, Dec. 15, 2015; hereinafter the same) stipulates that income received in return for the use of a patent right shall be deemed domestic source income if the patent right, etc. was used to be manufactured, sold, etc. in Korea, even if the patent right was not registered in Korea. However, Article 28 of the former Adjustment of International Taxes Act (amended by Act No. 1609, Dec. 31, 2018; hereinafter the same) provides that "for the classification of domestic source income of a non-resident or foreign corporation, tax treaties shall prevail over the domestic source income of the non-resident or foreign corporation, notwithstanding Article 119 of the Income Tax Act and Article 93 of the Corporate Tax Act." Thus, it cannot be deemed that income received in return for the use of the patent right cannot be deemed as domestic source income if the patent right of the U.S. corporation was registered in Korea as well as its registered domestic source income.

○ 5 pages 13, “Non-specified..............” add the following:

Although the Defendant asserts that there exists a method of evaluating the value of a patent that reflects objective, quantitative, and diverse elements, even if the Defendant’s assertion was received, the materials submitted by the Defendant alone are not calculated, so the entire disposition of this case shall be revoked.

2. Conclusion

Therefore, the judgment of the first instance court is just, and the defendant's appeal is dismissed as it is without merit.