Taiwan: Supreme Administrative Court rules on withholding tax related to royalties

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Taiwan: Supreme Administrative Court rules on withholding tax related to royalties

 debt collection and tax season concept with deadline calendar remind note,coins,banks,calculator on table, background ,time to pay concept

High-tech industries are an important part of the economy in Taiwan. Given the rapid changes associated with technological advancement, cutting-edge tech companies usually have higher incentives to engage in technology transfer across country lines in order to keep pace with the most innovative technology available. This partly explains why Taiwan has experienced a steady growth in the number of technology transfers.

In accordance with Taiwan's Tax Act, the income generated in Taiwan by a foreign company with no permanent establishment in Taiwan is taxable. In this respect, the royalty or remuneration received from others' use of an IP right, trade secret, or know-how is considered as assessable income subject to the withholding tax of 20%, unless otherwise specified, while the royalty payer serves as the tax withholder required to effect payment.

It is worth noting that the Supreme Administrative Court rendered in early 2020 a ruling which is able to shed some light on the tax-withholding issue.

In 2012, the legal representative of a Taiwan vacuum coating process equipment company received from tax authorities a payment certificate advising him to pay a short-paid duty, namely, a withholding tax of NT$50,210,089 ($1,674,954) (20% of NT$251,050,449, the royalty paid to a non-Taiwanese equipment supplier). Being dissatisfied with such determination, the representative filed a series of appeals in an attempt to indemnify against this tax liability. With a copy of a contract submitted as evidence, the appellant claimed that the equipment supplier should not be subject to any withholding tax since NT$251,050,449, included in the total amount of the transaction concerned, i.e. NT$380,938,780, was paid totally for purchasing machinery and equipment from the supplier and no royalty was ever paid or tendered.

However, even after the case was appealed to the highest court level, the Supreme Administrative Court affirmed the lower court's judgment that it is not improper for tax authorities to issue a payment certificate to collect the withholding tax of NT$50,210,089 for the following reasons: (1) NT$251,050,449 was enumerated in the appellant's financial statements and profit-seeking income tax returns of 2012 and 2013 as know-how/intangible asset and has been amortised since 2013; (2) the asset evaluation reports released by two financial advisory companies clearly set out that the total amount of the transaction concerned was NT$380,938,780 while the costs of the purchased fixed asset (equipment) and the intangible asset/know how were NT$129,888,331, and NT$251,050,44, respectively; (3) "technology transfer" was referred to in a section of the contract entered into between the two entities.

This case emphasised the need for a careful review of the contents of contracts. When it comes to a local company intending to purchase machinery or equipment from abroad, if no "technology transfer" is involved in the purchase process, such wordings as "technology transfer" or "royalty" should preferably not be referred to in any contracts, financial statements and the like.

Until now, Taiwan has signed reciprocal taxation agreements with 32 other countries. The withholding tax rate under these agreements may be less than 20% (see https://www.mof.gov.tw/Eng/singlehtml/191?cntId?63931 for details). In case a technical service offered by a foreign company in Taiwan is realised mainly through the engagement of local workers, a tax rate under 20% is available under Article 25 of the Income Tax Act. Moreover, while royalty or technology-based remuneration is deductible or exempt under specific conditions, as provided in Article 4.4.21 of the Income Tax Act, it should be borne in mind that tax deduction or exemption of this kind requires prior approval from the government.

Sumin LAI

more from across site and SHARED ros bottom lb

More from across our site

Cohausz & Florack, together with Krieger Mes & Graf von der Groeben, have taken action against Amazon on behalf of three VIA LA licensors
In the fourth episode of a podcast series celebrating the tenth anniversary of IP Inclusive, we discuss unconscious bias in the IP workplace and how to address it
Greg Munt, who has moved from Griffith Hack to James & Wells after four decades, hails his new firm’s approach to client service
Practitioners warn that closing the Denver regional office could trigger a domino effect, threatening local innovation and access to IP resources
Law firms are rethinking litigation strategies after USPTO director John Squires said he would take control of PTAB challenges
News of Singapore planning to streamline the licensing framework for foreign law firms and a partnership between Avanci and Xprize were also among the top talking points
In major recent developments, the court also ruled on another request concerning access to documents and appointed a new panel to the Court of Appeal
A new foundation in Chile is giving women in the IP community the mentorship, and visibility they’ve long lacked
The EUIPO is keen to stress the benefits of mediation as a means of resolving IP disputes, but do roadblocks remain?
Åsa Gustafson, global patent paralegal manager at Zacco, provides insight into the world of a paralegal, explains how she keeps abreast of legal developments, and reveals a passion for weaving
Gift this article