Cho Jae-201-Seoul Government-3464 (25. 2012)

If research and development services are entrusted to an enterprise holding a department exclusively in charge of research and development, the expenses incurred in the entrustment, regardless of whether it has a department exclusively in charge of the

If research and development services are entrusted to an enterprise holding a department exclusively in charge of research and development, expenses incurred in the entrustment, regardless of whether the entrusted enterprise has a department exclusively in charge of re-entrusted research and development, shall be eligible for tax credit

Tax credit for research and human resources development expenses under Article 10 of the Restriction of Special Taxation Act

2012Guhap32079 Revocation of Disposition of Corporate Tax Imposition

○○ Insurance Corporation

△△△ Director

May 9, 2013

August 22, 2013

1. The Defendant’s imposition of corporate tax belonging to ○○○○○○○○○ on April 1, 2006 or March 31, 2007, against the Plaintiff on September 1, 201, and the imposition of corporate tax belonging to ○○○○○○○○ on March 1, 2007, and April 1, 2007, shall be revoked on March 31, 2008.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

" ○○○○○○○○○○○○ 2, a corporation running the life insurance business, concluded a contract between April 1, 2005 and March 31, 2006 (hereinafter referred to as "206 business year") with a trustee company such as Sstock Company (hereinafter referred to as "trustee company of this case") to entrust the construction of an electronic computer system, and paid ○○○ 20 (hereinafter referred to as "the research and development costs of this case") to the Plaintiff on the ground that it did not belong to the Plaintiff on the ground that it would belong to ○○ 208, 200, 200, 2006, 200, 200, 200, 200, 200, 200, 20,000,000,000,000,000,000,000,000,00,000,00,000).

D. On September 19, 201, the Plaintiff appealed and filed an appeal with the Tax Tribunal on September 19, 201, and on June 25, 201, the Tax Tribunal rendered a re-audit on the amount paid by the Defendant to the Plaintiff on September 1, 2011 for the business year of 2006 through 2008, which was held by the Defendant to the Plaintiff on September 1, 2011, which was subject to the tax credit for the amount paid by the instant trustee, subject to the tax credit for research and development expenses.

E. Accordingly, on September 3, 2012, the Defendant, among the disposition imposing corporate tax for the pertinent business year 2006, corrected the amount of KRW 00 from among the disposition imposing corporate tax for the pertinent business year, and the disposition imposing corporate tax for the pertinent business year 2007, respectively.

[Based on recognition] The descriptions of Gap evidence 1 to 4 (including the number number, hereinafter the same shall apply), Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

1) The plaintiff's assertion

According to the former Restriction of Special Taxation Act and the Enforcement Decree of the same Act, research and development expenses subject to the tax credit refer to "expenses for the entrustment of technology development services to a domestic or foreign research institute or a dedicated department" and if research and development expenses are paid to a trustee company with a dedicated department in terms of the legislative intent and literal interpretation of the provisions on the tax credit for research and development expenses, all of the expenses are subject to the tax credit for research and development expenses. However, the Defendant deemed that the trustee company does not fall under the tax credit for research and development expenses for the portion re-entrusted to another company which is not a dedicated department by the dedicated department, without reasonable grounds."

In addition, it was not revealed that the costs of the entrustment of research and development services alleged by the Plaintiff were used for research and development activities, and the research and development costs corresponding to the re-entrusted portion by the trustee is not subject to tax credit. Even if the research and development costs corresponding to the re-entrusted portion constitute tax credit, the costs paid to the re-entrusted portion is not subject to

(b) Relevant Decree:

The entries in the attached statutes are as follows; and

C. Determination

1) Organization of issues

According to Article 10(1)2 of the former Restriction of Special Taxation Act, Article 9(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21307, Feb. 4, 2009; hereinafter the same), [Attachment 6] subparagraph 1(b)(1), and Article 9(2) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21307, Feb. 4, 2009; hereinafter the same), a domestic corporation that is not a small or medium enterprise is entrusted with technology development services, etc. to a domestic research institution (limited to the case of research in the field of science and technology) or a dedicated department of a domestic corporation that is not a small or medium enterprise shall be subject to tax credit as research and development expenses. In this regard, the issue is that "(1) whether the service entrusted by the Plaintiff constitutes a research and development service, (2) (limited to research and development service)

2) Whether research and development services are applicable

The former Restriction of Special Taxation Act does not have a separate definition on "research and development", but Article 9 (5) of the current "Research and Development Act" provides that research and development refers to activities to achieve scientific or technical development and to develop a new service and service delivery system. (1) The service entrusted by the Plaintiff is an activity to achieve technical development by establishing a systematic and comprehensive system to achieve the realization of large financial business, enhancement of nuclear business and service competitiveness, and optimal and efficient operation of information and communications technology, and (2) the National Tax Service interpreted that "the development service entrusted by a domestic corporation which has a department exclusively in charge of financial and insurance business" constitutes research and development service (3) and (4) it is reasonable to interpret that the service entrusted by the Plaintiff constitutes "research and development service" not "research and development service under the premise that the service entrusted by the Plaintiff is subject to the tax credit for the service provided by the consigned company" (4).

Whether or not

Under the principle of no taxation without law, or under the theory of no taxation without law, the interpretation of tax laws and regulations is to be interpreted as the law, barring special circumstances, and it is not allowed to expand or analogically interpret without reasonable grounds (see Supreme Court Decision 2002Nu6781, May 27, 2004).

In light of the above legal principles, it is reasonable to comprehensively consider the following circumstances with respect to the instant case, and to view that research and development expenses for the portion re-entrusted by the trustee constitutes a tax credit for research and development expenses.

" (1) 구 조세특례제한법 제10조 제1항 제2호는 연구개발을 위한 비용 중 대통령령이 정하는 비용이 있는 경우 세액공제를 받을 수 있다고 규정하고，같은 법 시행령 제19조 제2항，[별표 6] 제1호 나목 (1)，㉲에 의하면，대통령령으로 정하는 비용의 하나로 "국내외 기업의 연구기관(과학기술분야를 연구하는 경우에 한하다) 또는 전담부서에 기술개발용역을 위탁함에 따른 비용 을 규정(이하 '이 사건 규정'이라 한다)하고 있는바，문언 해석상 원고가 지출한 비용이 국내외 기업의 연구기관 또는 전담부서에 기숙개발용역을 위탁함에 따른 비용 에 해당하기만 하면 연구개반비 세액공제 대상에 해당하는 것 이므로，달리 "위탁함에 따른 비용 에 수탁자가 이를 재위탁한 부분에 해당하는 비용은 제외된다"는 명문의 규성이 없는 이상 수탁업체가 재위탁한 부분에 해당하는 연구개발비를 세액공제 대상에서 배제할 수는 없다.", " (2) 피고는 조세특례제한법 시행령 제6조 제2항에서 법 제7조 제1항 제1호 허목에서 대통령령이 정하는 주문자상표부착방식에 의한 수탁생산업이라 함은 위탁자로부터 주문자상표부착방식에 의한 제품생산을 수탁받아 이를 재위탁하여 제품을 생산'공급하는사업을 말한다고 규정하여 '위탁'과재위탁'을 구분하고 있으므로，연구개발용역이 재위탁된 경우에는 세액공제 대상에서 배제하여야 한다고 주장한다. 살피건대, 재위탁이란 위탁을 받은 자(수탁자)가 다시 제3자에게 위탁하는 것을 의미하는바, 재위탁의 주체는 수탁자이므로 위탁자의 입장에서는 자신이 수탁자가 아닌 이상 재위탁의 개념을 상정할 수 없다. 위와 같이위탁'과재위탁'은 그 주체(수범자)가 다른데이 사건 규정은 그 주체가 위탁자이고，조세특례제한법 시행령 제16조 제2항은 그 주체가 수탁자이므로, 위 두 규정은 그 논의의 평면을 달리한다고 할 수 있다. 결국，조세특례제한법 시행령 제16조 제2항에서 '재위탁'이라는 용어를 규정하고 있다고 하여 이 사건 규정을 해석함에 있어서도 위탁의 개념에 당연히 재위탁이 포함되지 않는다고 해석할 수는 없다.", (3) 피고는 2012. 2. 2. 대통령령 제23590호로 개정된 조세특례제한법I 시행령 [별표 6] 제1호 나목이 "국내외 기업의 연구기관 또는 전담부서 등의 기관에 과학기술 분야의 연구개발용역을 위탁(재위탁을 포함한다)함에 따른 비용 이라고 개정 규정함으로써 비로소 수탁업체가 재위탁한 부분에 해당하는 연구개발비도 세 액공제 대상에 포함되었으므로，위 규정은 창설적 규정이고 위 개정 전에는 수탁업체가 재위탁한 부분에 해당하는 연구개발비는 세액공제 대상에 포함되지 않는다고 주장한다. 그러나 앞서 본 바와 같은 위탁과 재위탁의 개념에 비추어 보면， 위탁"을 받은 수탁자는 위탁을 받은 용역을 자신이 직접 수행할 수도 있고，제3자에게 위탁(재위탁)하여 수행할 수도 있으므로, 위탁"에는 수탁자가 제3자에게 위탁(재위탁)하것도 포함된다고 봄이 타당하다. 따라서 위 규정은 확인적 규정이라고 봄이 타당하다.

(4) In determining whether a truster’s tax credit is granted, a trustee, under his/her own responsibility, to exclude a tax credit for the portion entrusted to a third party (re-entrusted) by the truster, would not only violate the principle of self-responsibility by having the truster be responsible for the economic decision that he/she did not have himself/herself, but also impose an obligation on the truster to verify the cost corresponding to the portion entrusted to a third party (re-entrusted) by a daily trustee, and to deduct the amount subject to the tax credit, and the taxpayer bears an obligation

(5) The legislative intent of the instant provision is to facilitate research and development by granting more benefits from tax credits to taxpayers for investment in research and development (see Supreme Court Decision 2000Du115, Jan. 22, 2002). Since it is impossible for a large scale computer development service to carry out all research and development services depending only on one company’s human resources and technology as a convergence of technology development, it is inevitable to re-consign part of computer development services to another company. Therefore, excluding research and development expenses corresponding to the re-entrusted portion by the entrusted company as the object of tax credits is an interpretation that does not take into account the legislative intent of the instant provision and the reality according to the trend of technology convergence.

4) Whether the re-entrusted enterprise is eligible for a tax credit where it does not have a research period or a department exclusively in charge

In light of the aforementioned legal principles, it is reasonable to view the instant case as eligible for tax credit in cases where the Health Center comprehensively takes into account the following circumstances, and where the re-entrusted company does not have a research institute or department.

(1) The provision of this case provides that "the cost for the entrustment of technology development services to a research institute or a department exclusively in charge of a domestic or foreign enterprise" is the cost for the entrustment of technology development services to a research institute or a department exclusively in charge of a foreign enterprise, and in the interpretation of the language, the cost incurred by the plaintiff is subject to the tax credit for research and development expenses if the cost falls under the cost for the entrustment of technology development services to a research institute or a department exclusively in charge of a domestic or foreign enterprise. The trustee (a research institute or a department exclusively in charge of a domestic or foreign enterprise

(2) In the case of large-scale computer development services, integrating and connecting individual systems is the core factor of development, and the entrusted company is important for the role and responsibility of the entrusted company, such as performance liability, repair liability, delay liability, maintenance and repair liability, liability, etc., and the instant provision stipulates that the entrusted company has a dedicated department for research and development expenses as the requirement for tax credit. On the other hand, the re-entrusted company does not directly bear any responsibility against the plaintiff, and the entrusted company bears the final position of the plaintiff. Therefore, it is not necessary to hold a dedicated department for research and development expenses to deal with the re-entrusted company (the same applies to the case where the entrusted company allows another department other than the dedicated department to perform part of the research opening and night service).

(3) If the outcome of a service performance constitutes a research and development service, and the research and development service was conducted under an entrustment contract with a trustee holding rhym of the dedicated department, it does not go against the legislative intent of the provision on tax credit for research and development expenses. It is difficult to deem that the Plaintiff, the truster, has abused the provision on tax credit for research and development expenses on the ground that the consignment three is re-entrusted to a third

(4) Meanwhile, subparagraph 1 (b) of the Enforcement Decree of the Restriction of Special Taxation Act, which was amended by Presidential Decree No. 24368, Feb. 15, 2013, clearly excluded the costs of research and development services performed by the non-exclusive department of the re-entrusted company, by amending the part of the “research institutes or dedicated departments of domestic and foreign enterprises” in the instant provision to the research institutes or dedicated departments of domestic and foreign enterprises (limited to the part directly performed by the responsible department, etc.) from the tax credits (the foregoing amended provision applies from the taxable year first commenced after January 1, 2013).

(5) The judgment of the Seoul High Court Decision 2010Nu25635 cited by the Defendant is a matter of whether the expenditure (for self-research and development, the person designated by Ordinance of the Ministry of Strategy and Finance as an employee working for the responsible department, etc.) is eligible for the tax credit for research and development expenses. Since the case of entrusted research and development differs in terms of the subject, requirements, etc. of the tax credit for research and development expenses (in the case of self-research and development, the personnel expenses of the staff of the responsible department) are subject to the tax credit for research and development expenses, and in the case of entrusted research and development, it is necessary to interpret more strictly than the entrusted research and development in the case of the self-research and development, and it is necessary to interpret more strictly the subject of the tax credit than the entrusted research and development in the case of the self-research and development. Therefore, such interpretation cannot be viewed as contrary to the tax equity in the case

3. Conclusion

The plaintiff's claim is justified and accepted.