The early appellate court 2014 Jeon2122

Whether the patent fee paid by the company to the representative director is included in deductible expenses.

The key patent right of this case is not subject to the application of the provision on the non-business cost or the provision on the denial of wrongful calculation because the representative director actually held the patent right of this case.

Articles 19, 26, 27 and 52 of the former Corporate Tax Act

Daejeon District Court-2015-Guhap-556 (2015.03)

As long as it is reasonable to deem that the patent was claimed, the adjustment of the types and quantities of various medicinal herbss, etc.

Clinical rooms for the adjustment of heating time after addition of herb substances and for 10 adults of extractions so obtained;

If the examination, etc. is equipped with only the relevant facilities of a small scale, an individual business registrant who is not a corporation

It seems to be a kind of work that can be done.

D) On the other hand, the Plaintiff Company’s name has the effect of preventing the omission and promoting the growth of her hair.

patent rights for an invention with the title "in the case of an in the case of an in the case of an in the case of an in the case of an in the patent

otherwise, the composition of the applicant and the inventor is diverse, and the concentration is different in the invention process;

In addition, the method of extracting chemicals, such as controlling the heating temperature and chronic ethyl, shall be added to the mixture of mertans.

Considering that the process, such as conducting measurable experiments for laboratory animals, has been added, the special case in this case

It is judged that there is a qualitative difference in the invention process.

E) According to the specification of the patent of this case, 4 months for 10 adults during the invention process

It can be seen that clinical tests have been conducted to use various kinds of practices among the plaintiffs. However, the plaintiff is the plaintiff.

A company purchases 12,190 old beginning from January 22, 2004 to March 22, 2004, and 3.

18. Taking into account the fact that the term of the contract was entered into on March 18, 2007 with respect to the term of the contract, etc.

The plaintiff company is not the experiment use of the patent of this case at the latest on March 18, 2004.

It appears that the patent was purchased for mass production of Mashoo and Mashoo, which is the core of the patent of this case.

After completion of all kinds of show and completion of the relevant clinical experiments, the expenses shall be paid after completion of the relevant clinical trials;

under the premise that initiation of mass production with respect to it is natural order in terms of social norms:

It is reasonable to deem that the result of the clinical experiment of the patent of this case was already derived on March 18, 2004.

As such, on March 18, 2004, the results of the clinical experiment of the patent of this case were derived.

On November 18, 2003, no later than four months before the end, all kinds of extractions at the core of the patent of this case

The execution should be completed, and only after December 2, 2003, the Plaintiff Company

As seen earlier, the Plaintiff Company’s completion, etc. of the above extraction amount.

such terms and conditions as may not be deemed to have existed.

F) The rate of usage fee payment under each of the instant contracts falls from December 22, 2008, respectively.

In this case, considering that the date of establishment of a company-affiliated research institute of the Plaintiff Company was June 11, 2008, it shall be considered that the date of establishment.

The patent law firm in the 21st century can not be evaluated as the basis for the payment of the user fee.

The patent right to the effect that "the prior patent of this case was carried out in part of the plaintiff company's product."

If a written opinion is drawn up on whether or not to enforce the AA, such presumption or determination shall be reasonable.

It seems that there are reasons.

H) ThisA from 2005 to 2007, pursuant to each of the instant contracts, from the Plaintiff Company.

Since income tax is deemed to have been paid on the patent fee received, in particular, the instant case

In conclusion of each contract, there is no intention of tax avoidance, etc. In this regard, thisA does not appear.

D Cosmetics Co., Ltd.

The contractor KimCC and the contractor under the cultivation contract with the company shall be entitled to produce the raw materials required by the company (hereinafter referred to as "products").

The following shall be entered into with respect to entrustment of cultivation, etc.:

Article 2 [Place and Items for Cultivation]

1. The KimCC shall be the place where the products consulted with the Plaintiff company were cultivated (name: JJ 000-00, GG-gun H of Gyeonggi-do);

Products shall be cultivated in 90,000 square meters, a farming area that has been consulted with each other.

Article 4 (Payment of Price)

Down payment of KRW 95,00,000 shall be paid at the time of conclusion of a contract, and the payment of any balance shall be settled at the time of delivery of the product.

(c)(it may be paid at the current market price when purchasing a drug at the beginning);

Article 6 (Term of Contract)

The contract date shall be from the contract date to March 18, 2007.

1) From May 1, 1998, thisA sells human stuffs and cosmetics in trade names, such as D Cosmetics.

It has been engaged in the manufacturing industry, and from December 1999, there has been a trend made by putting ginseng, Sigra, Iropic, Iropic, etc.

The sale of shampoo and shampoo with the addition of the sampoo and shampoo, and on June 18, 2001, the prevention of sampoo and shampoo and the creation of s

A patent for an invention with the name of shampoo and rinse containing water was filed on December 2, 2003.

The above patent right was established on January 4, 2005.

Registered, which accounts for the weight of 10-40% of the extracted amount of medicinal herbs consisting of breadth and ginseng, etc.

a patent for shampoo and shampoo with the effect of preventing spash and shampoo after adding extracts;

(hereinafter referred to as "the prior patent of this case") and thisAA is the prior patent of this case and the non-patent of this case.

In addition, three patent applications related to the products of the Plaintiff Company were filed.

2) The Plaintiff Company shall have three times from January 22, 2004 to March 22, 2004, as the Plaintiff Pharmaceutical Affairs Association.

ter purchased 21,942,00 Won totaling 12,190 Won, and on March 18, 1999

between the Kim Young-ok that operates the business entity called the "Ban of the Tropical tree leader" and the head of the group of the group of the group of the group of the group of the group.

A contract for the cultivation of grassland was entered into, and the main contents thereof are as follows:

Article 2 (Definitions of Related Contracts and Terms)

1. The term "patent right" means any technology developed and owned by thisA, which is the technology received from the Commissioner of the Korean Intellectual Property Office;

The physical parts are as follows:

2. The term "contractual products" includes products developed or being developed by thisA, and are produced by the plaintiff company;

all products.

Article 3 (Right to Sales)

1.ThisA shall grant the right to manufacture and sell "contractual products" to the Plaintiff Company.

2. The Plaintiff Company shall pay to thisA the royalty referred to in Article 4 Section 3 as the price for granting the above sales rights.

3) Thereafter, on July 27, 2004, thisA filed an application for the patent of this case with himself as an inventor.

C. The patent of this case was registered on January 31, 2008, and this case’s patent right is related to this case’s patent

Main details of a statement submitted to the Commissioner of the Korean Intellectual Property Office shall be as specified in attached Form 4.

4) Meanwhile, the main part of the contents commonly contained in each of the instant contracts is Da.

same as drinking.

In addition, as each of the contracts of this case was concluded on seven occasions, the term of contract and the rate of payment of user fees.

The change has been changed, and the contents are as follows:

5) ThisA has completed business registration for the lease business of industrial property rights on July 1, 2005, and Sungnam

Special Cases received from the Plaintiff Company from 2005 to 2007 under each contract of this case to the director of the tax office

A. However, thisA and the head of Sung-Nam District Tax Office and the Director of Sung-Nam District Tax Office reported the comprehensive income tax on the royalty of the right.

Accordingly, there was a dispute as to whether the above patent fee constitutes business income under the Income Tax Act;

ThisA made an appeal to the Tax Tribunal on its matter, and the Tax Tribunal on October 6, 2010

on the basis of the above business registration, the above patent fee constitutes business income under the Income Tax Act.

The decision was made to that effect.

6) Around 2006, the Plaintiff Company operated a product development room with five employees working for the Plaintiff Company.

On June 11, 2008, a company-affiliated research institute was established.

7) On March 26, 2008, the Plaintiff Company had the effect of preventing her hair and promoting the growth of her hair.

An application for a patent for an invention of the name of "product" shall be filed and registered on August 25, 2010.

The applicant of the above patent is FFland, Inc., and the inventor is the Plaintiff Company or EAA.

Other than Kim Ho-ho and five others, and the main contents of the specification of the above patent are as shown in attached Table 5.

8) The Plaintiff Company’s operating income was in black state from 2008 to 2010, and the Plaintiff Company’s operating income from 2011.

In 2012, it was changed to black state.

9) However, the TT Patent Law Office includes some of the products of the Plaintiff Company.

The weight of the extracted herb products contained in the extracted product is 9.5% to 21%, and the agency of the prior patent of this case

The Gu's scope is 10-40% of the weight of the extraction of Chinese pharmaceutical products, and the difference of 0.5% is an error in the general process.

"The scope or manufacturing error can be seen as a scope or manufacturing error, and the operating effect may not be deemed to vary."

For this reason, the prior patent of this case was granted to some of the products of the Plaintiff Company.

Then, KK International Patent Law Office has prepared a written opinion as to whether the patent is granted. On the contrary, KK International Patent Law Office

On April 1, 2014, the prior patent of this case was not granted on certain products of the Plaintiff Company.

However, the patent of this case was executed, and the written opinion on whether to grant patent is written.

10) Meanwhile, the Central Institute of the Plaintiff Company’s Central Institute shall be able to have 20,000 old elementary school in the course of the instant lawsuit

Sheet shampoo and shampoo (500ml standard) Absent us that are manufactured with approximately KRW 970,000 for production

Written a certificate of quantity used.

[Reasons for Recognition] Unsatisfy, Gap evidence 4, 6, Gap evidence 9-1, 2, Gap evidence 10-1, 2, 3,

Gap evidence 13-1, Gap evidence 19, 21, 22, 28, Eul evidence 4-1, Eul evidence 5-1 through 7,

Eul evidence 6, Eul evidence 7-2, Eul evidence 12 and 13, and the purport of the whole pleadings

D. Determination

1) A change in the grounds for a disposition for which a change in the grounds for the instant corrective disposition is not allowed.

J. J. L.T.

The subject matter of a taxation disposition lawsuit is the objective existence of the tax amount determined by the tax authority.

customs authority shall be the tax base recognized by the disposition in question not later than the time of closing of the fact-finding proceedings; and

(1) the identity of the disposition and submission of new data to support the legitimacy of the amount of duty;

to the extent that the reason can be exchanged and changed, and data at the time of the disposition must be

by determining the legality of the disposition, or only the grounds at the time of the disposition

(2) In other words, the tax authority’s initial disposal of the transferred building other than the purpose of the house.

No capital gains tax shall be levied on the ground that the area of the portion is larger than the area of the housing use.

section 5 subparagraph 6 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994)

"One house for one household under item (i)" was alleged to have failed to meet the requirements of "one house for one household" and "the transferor of a lawsuit" and "one house for another house at the time of the transfer of the building," and "the above requirements were not satisfied.

claim is within the scope of maintaining the identity of the disposition, and the tax authority's loss brought forward.

under the premise that there was no loss of the reason for the initial disposition, but in the business year

It can be changed to the grounds for disposition premised on the existence of the gross income (Supreme Court, Oct. 1, 2002).

1. Supreme Court Decision 2001Du1994 Decided May 16, 201, Supreme Court Decision 2013Du21076 Decided May 16, 2014, etc.

Based on the above legal principles as to the identity of the disposition, the grounds in the correction disposition of this case

With respect to whether the change was made within the scope of "the identity of the disposition", the health expenses, as mentioned above.

According to the purport of the disposition of this case and the purport of the entire pleadings, the facts of taxation requirements of the corrective disposition of this case

the patent of this case is registered in the name of thisA, but its substance is the sole action of the Plaintiff Company.

was owned jointly by the Plaintiff Company or by thisA, and the ratio of shares of the Plaintiff Company is at least 5

It is called "the fact that it reaches 0%," which is all the corporate tax and value added tax of the Plaintiff Company.

In determining whether the pertinent usage fee is subject to the non-deductible of losses or non-deductible of input tax amount.

Since the correction of this case is a reason, the alteration of the reason for the correction of this case is an offense of "the identity of the disposition."

It is reasonable to deem that it was done within the above scope, and the reason for change in the correction disposition of this case is permissible.

This part of the Plaintiff Company cannot be deemed to constitute a change in the grounds for action that are not available.

The argument about the issue is without merit.

2) The patent right of this case is solely owned by the Plaintiff Company or jointly owned by the Plaintiff Company and thisA.

affiliation

A taxpayer shall also have the same economic purpose in carrying out economic activities.

One of the several legal relations can be selected, and the tax authority has no special reason to do so.

respect the legal relationship chosen by either party and is subject to the principle of substantial taxation.

Notwithstanding the form of such transaction, it can be denied the validity of the transaction as an act of tax avoidance.

For the purpose of the principle of no taxation without law, individual and specific denial provisions should be established in the law.

Supreme Court Decision 98Du14082 Decided November 9, 1999; Supreme Court Decision 2000Du963 Decided August 21, 2001;

Supreme Court Decision 2008Du14067 Decided May 14, 2009, etc.). In addition, transactions between a corporation and a specially related person

The burden of proving that the act constitutes a wrongful calculation under the Corporate Tax Act is against the tax authority.

in this chapter, however, the facts alleged in the facts of taxation requirements in light of the empirical rule in the specific proceeding

In the end, the other party cannot be eligible for the application of the empirical rule.

without proving that the taxation disposition in question has not satisfied the requirements of taxation;

It is impossible to readily conclude that it is a case (Supreme Court Decision 2003Du10343 Decided January 13, 2005; Supreme Court Decision 200

7.2. 2. 2. 206Du13909.

In light of the above legal principles, in this case, EA and the Plaintiff Company are mutually legal entities.

The patent application of this case is filed after the incorporation of the plaintiff company, with a special relationship under tax law.

under this case, the contract dated January 3, 2005, June 23, 2006, and December 2, 2007

4. The fact that the patent of this case was not registered at the time when the contract was concluded is as seen earlier.

However, the above facts alone are that the patent right of this case is owned solely by the plaintiff company or the plaintiff company.

The payment of the royalty of this case constitutes a joint ownership, and is directly related to the business affairs of the Plaintiff Company.

The Plaintiff Association due to transactions with EA in a special relationship with the Plaintiff Company.

It is insufficient to view that it constitutes a “unfair reduction in tax burden on income”.

there is no evidence to acknowledge otherwise. Rather, there is no evidence to prove the facts of recognition as seen earlier, as well as evidence and changes mentioned earlier.

In full view of the following circumstances recognized by the purport of the whole, thisA shall not apply to the Plaintiff Company:

It is reasonable to view that the patent of this case was individually claimed prior to its establishment.

A) With respect to the business experience of thisA, thisA has been incorporated before the establishment of the Plaintiff Company.

The development technology of shampoo and shampoo, which has the effect of preventing sampoo with addition of medicinal materials, was in possession of them.

I seem to have considerable knowledge and know-how.

B) Types of additives within the scope of invention of the patent of this case, within a certain scope.

and, if necessary, the concentration of extraction amounts to be produced by modifying additional quantities;

the patent of this case, in the light of the fact that the patent of this case is contained, the patent of this case is prior to it.

application for prior patent, etc. of this case and the application for such prior patent, etc. of this case, regardless of any other patent

In the extension of the sale of shampoo and shoo, it is deemed that the existing invention of thisA has been supplemented by the existing invention of thisA.

It is natural that it is natural.

C) The Defendant’s work, etc. of inserting 30 to 70 g of medicinal herbss, such as ginseng and copper, etc., into water 800 km

Although it is alleged that it is difficult to be made without contribution of the corporation due to its nature, the specification of the patent of this case

(b) by means of any drug made of any medicinal material in accordance with this invention, in the form of

If there is only a facility that can wear herb drugs, so it is possible to manufacture them with a simple facility.

In addition, there is only a statement that it is possible to manufacture at a low cost and at a low cost.

As such, thisA is subject to an error in the enforcement of the existing patented invention and its sale, etc.

Pursuant to the diversification, etc. of the Company's products, the AA patent rights contribute to the Company's products;

on the other hand, while the research findings of the Plaintiff Company itself contribute to the products of the Plaintiff Company.

It is interpreted that the degree of increase is gradually reflected.

G) The Defendant’s initial conclusion of each of the instant contracts and the filing time of the instant patent application

B. A patent is subject to a patent fee payment contract, but only a patent already registered is subject to a patent fee payment contract.

In addition, as supporting this, Article 2(2) of each of the contracts of this case cannot be seen as being a "contract".

product means a description "including any product which has been developed or is being developed by thisA;

The prior patent and patent are already filed at the time of conclusion of each contract of this case.

Patents filed by this AA in relation to the sector of the Plaintiff Company’s product was several.

Therefore, the prior patent, patent, etc. of this case is deemed to be worked on the plaintiff company's product.

The registration of each of the above patents shall be expected to be registered, and all of the patents of thisA shall be comprehensively or comprehensively

It appears that each contract of this case was concluded with the Plaintiff Company on the condition that each patent was registered.

C. However, the instant patent was registered on January 31, 2008, and the taxable period of the instant disposition 20

From 08. to 2012. As seen earlier, an objection under each of the instant contracts in force is valid.

Upon entering into each of the contracts between the Company and the Company, the Company had an operating profit;

In 2011, some of the instant usage fees can be collected, so that such fees may be partially collected, each of the instant limits.

It seems that there was a reasonable economic incentive to conclude a contract.

E. Sub-decision

Thus, the disposition of this case concerning the non-deductible of the usage fee of this case and non-deductible of the input tax amount.

The part assumes that the Plaintiff Company and EA share the patent of this case in fact 1/2.

As such, corporate tax and value-added tax of the plaintiff company are illegal.

When calculating the legitimate amount of tax, it shall be as shown in the separate sheet 2 column. Accordingly, it shall be as shown in the separate sheet 2.

The "reasonable amount of tax recorded in the separate sheet No. 2" in the separate sheet No. 1 of the disposition of this case

any portion exceeding each such tax amount shall be revoked.

On the other hand, the plaintiff company's revocation of the entire "amount of corrective disposition" in the separate sheet No. 1 of the disposition of this case

Section B. However, the part related to the user fee of this case among the above part is recorded in the attached Table 2.

The term “justifiable tax amount” has already been reflected in the column, and the Plaintiff Association on the grounds of illegality other than the usage fee of this case

The plaintiff company's claim as to the portion exceeding the above scope of recognition has no assertion or proof.

Daejeon director of the tax office

208.20

2015.03.03

1. The part of the "amount of disposition" recorded in the separate sheet No. 1 list and "amount of disposition tax" recorded in the same list of each corporate tax and value added tax imposed by the defendant against the plaintiff, which exceeds the amount of each tax in the separate sheet No. 2 list, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/20 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The disposition of imposition of each corporate tax and value-added tax (total amount of KRW 4,187,440,160) recorded in the column of "Disposition Date" and "Disposition Tax Amount" recorded in the column of "Disposition Tax and Value-Added Tax Amount for the plaintiff by the defendant of the Gu office," and the disposition of imposition on the amount exceeding the corrected amount of each reduction stated in the column of "The Amount of Tax Amount related to

1. Details of the disposition;

A. The Plaintiff is a company engaged in the manufacture and sale of shampoo and shampoo (hereinafter referred to as the “Plaintiff company”), and the number of sick persons is the representative director of the Plaintiff company and 100% of the shares of the Plaintiff company, and thisA and the Plaintiff company have a special relationship under the Corporate Tax Act between them.

B. However, between January 3, 2005 and June 20, 2012, the Plaintiff Company entered into a contract for the development of each patent right and user fee (hereinafter collectively referred to as "each of the instant contracts") with the Plaintiff Company to manufacture and sell products using the patent right owned by the Plaintiff Company and pay a certain patent fee to the Plaintiff Company. Accordingly, the Plaintiff Company paid patent fees to this Company from January 3, 2005 to June 2012. The patent fees paid from January 2008 to June 20, 2012 (hereinafter referred to as "the instant royalty") were the total amount of patent fees paid to the Plaintiff Company 8,94,026,101 (hereinafter referred to as "the instant royalty"). Meanwhile, from August 20, 2013 to September 24, 2013, the Defendant did not consider the Plaintiff Company's tax investigation as non-deductible expenses and calculated the aforementioned disposition fee as non-deductible expenses (hereinafter referred to as "non-deductible expenses and expenses of the Plaintiff Company."

D. Accordingly, on April 8, 2014, the Plaintiff Company filed an appeal with the Tax Tribunal. On September 23, 2014, the Tax Tribunal rendered a decision that “The disposition of the instant case shall re-examine the appropriate scope of the royalties of the instant case and only the exceeding portion shall be deemed as non-deductible expenses unrelated to the work and shall be deemed as non-deductible expenses, and its tax base and amount shall be corrected.”

E. According to the above decision, the defendant worked for the plaintiff company's patent for the invention under the name of "herbals creation (Patent No. 10-080000)" among the patents of thisA, but since this case was an employee invention of this case, the plaintiff company and LeeA shared the patent of this case as an employee of the plaintiff company, on the ground that this case's patent is owned by the plaintiff company's employee, the plaintiff company and LeeA made a correction disposition such as the correction disposition in the attached list No. 1 after deducting 50% of the royalty of this case from deductible expenses and non-deduction of the input tax amount from deductible expenses (hereinafter "the correction disposition of this case").

[Ground of recognition] Facts without dispute, Gap evidence 1-1 to 14, Gap evidence 2, 3, 4, Gap evidence 5-1, 2, Gap evidence 6, and 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

1) Plaintiff Company

A) The grounds for the instant disposition are that this case’s patent was not carried out in the Plaintiff Company’s product, and the grounds for the instant corrective disposition are premised on the fact that the instant patent was carried out in the Plaintiff Company’s product, and both are different in their basic facts. This constitutes an addition or modification of the grounds for the instant corrective disposition, and thus, the instant disposition cannot be maintained as it is on the grounds for the instant corrective disposition.

B) ThisA is not an employee invention but an individual invention prior to the incorporation of the Plaintiff Company, and the patent of this case belongs to the ownership of the Plaintiff Company, and the payment of patent fees is not subject to the provision of an office cost or wrongful calculation. Thus, the disposition of this case is unlawful.

2) Of Defendant AA’s patent, only the instant patent was used for the Plaintiff Company’s product, and the instant patent appears to be difficult for an individual to make an invention due to its nature. Since each of the instant patent contracts was concluded at the time of the establishment of the Plaintiff Company, the instant patent right is only in the name of the Plaintiff Company and its actual owner is the Plaintiff Company. Even if the instant patent right is not owned solely by the Plaintiff Company, considering the Plaintiff Company’s contribution to the invention, considering the Plaintiff Company’s contribution to the invention, the instant patent right is deemed to be jointly owned by the Plaintiff Company and EA, and thus, the instant patent right is deemed to be excessively calculated, and as such, the instant disposition that excluded the Plaintiff from deductible expenses and the input tax deduction is lawful.

(b) Related statutes;

The entries in the attached Form 3 shall be as follows.

(c) Fact of recognition;

shall not be effective.

(B) After the closing date of the argument in this case, the Defendant asserted that the patent right in this case should have been registered in the name of the Plaintiff Company since the Plaintiff Company comprehensively acquired the rights and obligations of the Plaintiff Company, including the patent right in this case, but the Defendant’s comprehensive acquisition of the patent right in this case cannot be deemed to exist solely based on the evidence submitted by the Defendant, and even if such contract exists, as seen earlier, the patent in this case was not filed on December 2, 2013, which was the date of the establishment of the Plaintiff Company, and thus, the patent in this case cannot be deemed to have been established as a property right to the extent that the patent in this case would be the subject of the contract, and the patent right in this case is not owned by the individual in this case, nor owned by the workplace in this case. Accordingly, the Defendant’s assertion on this part is without merit).

3. Conclusion

Therefore, the plaintiff company's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.