Seoul Administrative Court 2012Guhap13528 ( October 25, 2014)

early 2012west 1493

When calculating the limit of foreign tax credit, foreign source income shall be the net income of user fees, which is the amount obtained by deducting direct and indirect expenses from the total amount of user fees.

When calculating the limit of foreign tax credit, the foreign source income of the molecule is calculated by subtracting direct and indirect expenses, not the total amount of the user fee, from the total amount of the user fee, and the appropriate method should be chosen at the time of indirect expenses distribution.

Article 57 (Foreign Tax Credit)

2014Nu4957 Revocation of Disposition of Corporate Tax Imposition

- Appellants

AAA Content hub Co., Ltd

The head of Yangcheon Tax Office

Seoul Administrative Court Decision 2012Guhap13528 decided April 25, 2014

December 10, 2014

January 28, 2015

1. Upon the request made by this court as to the portion of additional tax, the part of the disposition imposing additional tax by the Defendant, among the disposition imposing additional tax on the Plaintiff on October 31, 2014 and the imposition by the OOOO of the disposition imposing additional tax on the Plaintiff for the business year 2009, on October 30, 2014, which exceeds each of the imposition by the OOOO of the disposition imposing additional tax on the corporate tax for the business year 2009, and the additional tax for the business year 2010, shall be revoked.

2. The plaintiff's remaining claims as to additional tax are dismissed.

3. All appeals filed by the Plaintiff and the Defendant with respect to the principal tax are dismissed.

4. The costs of the lawsuit after the appeal shall be borne by each person.

1. Purport of claim

As the Defendant revoked the imposition of corporate tax on March 2, 2012 on the Plaintiff, the first instance court changed the purport of the claim as above, and accordingly re-dispositions that correspond to the disposition of imposition of corporate tax on October 31, 2014, the first instance court revoked the disposition of imposition of corporate tax on October 30, 2009, the second instance court changed the disposition of imposition of corporate tax on the Plaintiff, and the second instance court changed the date of each re-disposition stated in the amended application to each other. Meanwhile, the date of each re-disposition stated in the revised application was changed to each other by mistake).

2. Purport of appeal

A. The plaintiff

In the judgment of the first instance court, the part against the plaintiff shall be revoked, and each of the disposition imposed by the defendant on March 2, 2012 on the plaintiff on the imposition of OOO(including additional OOOO(including additional tax) and OOO(including additional tax OOO) in the business year 2009 shall be revoked.

B. Defendant

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

1. cite the judgment of the first instance;

The reasoning of this court's decision is as follows, except for the part of the first instance court's decision which is dismissed and additionally determined in the following paragraphs: Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act shall be cited.

" September 16, 2009" that reduces " September 18, 2009" to " September 18, 2009".

The term "the disposition of this case" in the third 10th "the first 10th "the first disposition of this case" is regarded as "the first disposition of this case".

○ 3 The following shall be added to the third 13th:

G. On October 30, 2014 while the instant lawsuit is pending, the Defendant revoked the portion of the penalty tax during the instant disposition, and, while disclosing the type of the penalty tax and the grounds for calculating the amount of tax, issued a disposition imposing the penalty tax additional to the corporate tax for the business year 2009 on October 31, 2014 (hereinafter “the instant disposition” by adding the amount of the principal tax of the instant disposition to the amount of the corporate tax and the amount of the additional tax imposed again).

○ 12 12 14, 15 / 15 / [based grounds for recognition] include “entry of Category B No. 6”.

○○ 12th "Enforcement Rule of the former Corporate Tax Act" is regarded as the "Enforcement Rule of the former Corporate Tax Act".

○ 16th to fourth is as follows:

(iv)the calculation of a reasonable amount of tax;

According to the above determination, where common expenses are divided based on personnel expenses, the principal corporate tax for the business year 2009 (AAAAAAAA A + Plaintiff OOO) is to be paid by the Plaintiff (i.e., the principal corporate tax for the business year 2010), OOO, the main corporate tax for the business year 2009 (i.e., AAAAAAAAAP + Plaintiff OOOAC + the main tax for the business year 2009), and the additional tax for the business year 2010 is to be levied for the OOO. Therefore, the imposition of additional tax for the business year 209, among the imposition of the principal corporate tax for the business year 209, the imposition of additional tax for the business year 2009, the portion of the imposition of additional tax for the business year 209, and the imposition of additional tax for the OO209, and the portion of the imposition of additional tax for each business year 2009.

(unit: Won)

Gu Sector

209

2010

AAAAccusa

Tax Base

OOO

OOO

OOO

calculated tax amount

OOO

OOO

OOO

Overseas revenue amount;

OOO

OOO

OOO

Direct indirect costs, etc.

OOO

OOO

OOO

Overseas income amount;

OOO

OOO

OOO

Amount of foreign tax credit limit;

OOO

OOO

OOO

The Disposition of this case

Corporate Tax Amount

OOO

OOO

OOO

Late-paid Tax Amount

OOO

OOO

OOO

Total

OOO

OOO

OOO

Amount of legitimate tax;

Corporate Tax Amount

OOO

OOO

OOO

Late-paid Tax Amount

OOO

OOO

OOO

Total

OOO

OOO

OOO

2. Additional determination

A. As to the Plaintiff’s assertion on the method of calculating foreign source income

국제적 이중과세 방지와 관련하여 외국납부세액에 대한 완전한 세액공제 방법을 채택할지 여부는 각국이 선택할 입법정책의 문제라고 판단되고 여기에 제1심에서 든 여러 사정들을 더하여 볼 때, 이 사건 사용료에 대한 국외원천소득금액을 순소득으로 졔산하는 것이 구 법인세법 규정의 문언에서 벗어난 해석에 따른 것이라고 볼 수 없고 원고로부터 사용료의 일부를 분배받는 판권소유자 등이 해당 부분에 대하여 부과된 외국납부세액을 공제받지 않는다고 하더라도 이러한 사정이 원고의 세 부담을 부당하게 가중시키는 것이라거나 이 사건 사용료 총액을 국외원천소득으로 보아야 할 근거가 된다고 볼 수 없다.

Other plaintiff's assertion cannot be accepted.

B. As to the defendant's assertion on the allocation standards and methods of common expenses

While the Plaintiff’s ratio of personnel expenses for domestic content business and foreign content business is merely 94:6 degrees, the sales ratio reaches 73.5:26.5, it cannot be readily concluded that domestic content business activities contribute to the business performance of foreign content business. The Plaintiff’s domestic content business sector has no objective data that can determine the impact of foreign content business or future contribution ratio. Thus, the Defendant’s assertion that, on a different premise, the joint expenses distributed to domestic content business sector should be distributed in proportion to the sales ratio based on personnel expenses, should be distributed again to foreign content business sector.

3. Conclusion

The claim of this case is reasonable within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. The judgment of the court of the first instance on the principal tax portion is justifiable as this conclusion is consistent with this conclusion. Therefore, with respect to the penalty tax portion, the part exceeding each legitimate penalty tax amount shall be revoked according to the revised claim of this court, and the remaining claims shall be dismissed, and all appeals filed by the plaintiff and the defendant on the principal tax portion shall be dismissed.