Withholding Tax License Agreement

If a foreign donor grants a German licensee the use of its software for the intended purpose, the royalties paid do not fall within the scope of the withholding tax. The financial benefits generated by greater profitability, such as licensed process optimization software, do not constitute additional commercial use if the software was used simply in accordance with their destination. The project is very important for customers (i) software licenses and databases granted to German customers or German distributors, or (ii) paying licenses to foreign licensees with regard to software or databases. Finally, it should be noted that the issues relating to the international patent licensing tax for tax deductions are neither trivial nor unique for Taiwan. In September 2016, Microsoft filed a complaint with South Korean tax authorities, claiming a refund of 600 billion won ($533 million) in taxes it allegedly overpaid based on the licensing fees it paid to Samsung and other Korean companies. Microsoft accuses it of being improperly imposed on patent licenses covering jurisdictions other than Korea. Other companies have reportedly filed similar claims with Korean tax authorities, including NTP Inc., Evident Technologies, Saxon Innovations and Semiconductor Components. Among the methods of using the mark in the civil code is the importation of goods into Russia. Therefore, where a trademark licensing agreement indicates the importation of products into Russia as a method of using the trademark, the royalties payable under the licensing agreement are recognized as having a connection to the imported goods. In this case, regardless of the provisions of the delivery contract, the Russian customs authorities have reason to demand the inclusion of royalties in the customs value of imported goods. Tax aspects of unlicensed licences Sometimes the parties to a licensing agreement indicate that the corresponding rights are transferred to the licensee without consideration. This may result in tax risks for the Russian licensee.

Under Russian law, assets received without consideration are considered non-operating income. Yesterday, the Federal Ministry of Finance published a draft circular on the German tax treatment of royalties granted by non-resident licensees (the project can be found here). Another essential element for the emergence of non-operational products is the use of an unrequited right. In order to avoid the tax risk of the non-operating product, the parties should provide in the contract for the free use of the IP object transferred by the corresponding counterparty for the acquisition of relevant property rights. The consideration can be agreed in cash or in some other form (for example. B by the provision of the rights to certain works or by the provision of certain services, such as .B obligation for the licensee to place the rights holder`s trademarks in advertisements). This consideration should be provided directly for the acquisition of relevant intellectual property rights. However, even in the case of a free licensing agreement, the parties may agree that the policyholder can use the IP right covered by the contract for a certain period of time, without paying royalties. This happens, for example. B where a subject has entered into a non-free licensing agreement, but before the registration of the mark by the state on goods is used without consideration to the rights holder.

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