A. Whether the method of offence and defense not asserted in the previous trial procedure can be asserted in a lawsuit that contests the illegality of taxation (affirmative)

B. Whether the burden of proof exists with respect to the taxation requirement of “a person who objectively evident of the fact that he was friendly due to the transferor’s trend, alumni relationship, the same workplace relationship, etc.” under Article 11 of the Enforcement Rule of the Inheritance Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1849 of March 9, 191)

A. In a lawsuit disputing the illegality of taxation disposition, the plaintiff can assert the method of offence and defense that was not asserted during the previous trial procedure in the litigation procedure, and such assertion cannot be viewed as contrary to the principle of speech or the principle of trust and good faith.

B. The burden of proving the taxation requirement of Article 11 of the Enforcement Rule of the Inheritance Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 1849 of March 9, 191) includes the burden of proving the taxation requirement of "a person who objectively shows the fact of friendship due to the transferor's trend, alumni relationship, the same workplace relationship, etc.

A. Article 27(b) of the Administrative Litigation Act; Article 26 of the same Act; Article 34-2(2) of the Inheritance Tax Act; Article 41(2) of the former Enforcement Decree of the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 190); Article 11 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1849 of Mar. 9, 191)

A. Supreme Court Decision 90Nu943 delivered on November 13, 1990 (Gong1991,118), 90Nu4938 delivered on November 27, 1990 (Gong1991,262). Supreme Court Decision 88Nu7132 delivered on March 28, 1989 (Gong1989,699), 88Nu2861 delivered on March 13, 1990 (Gong190,904) (Gong190,1084).

Plaintiff

Head of Seodaemun Tax Office

Seoul High Court Decision 90Gu18397 delivered on June 19, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

As to ground of appeal No. 1:

In a lawsuit disputing the illegality of taxation disposition, the plaintiff can assert the method of attack and defense that was not asserted in the previous trial procedure, and such assertion cannot be deemed to be contrary to the doctrine of speech and good faith or the principle of trust and good faith. The argument is without merit.

As to ground of appeal No. 2

In light of the adopted evidence, the court below acknowledged that the plaintiff transferred 12,00 shares issued by the non-party 1 to the non-party 1, who was owned by the plaintiff, 5,000 won per share of 12,00 won per share of the shares issued by the non-party 1 as stated in the judgment of the court below, and held that the plaintiff and the non-party 1 can be recognized as having the same workplace relationship with each other, and since the above non-party 1 did not prove that the plaintiff and the non-party 1 had an objective fact of acquiring shares of this case to the extent that the market price of this case is significantly higher than the market price of this case under the Inheritance Tax Act (amended by Presidential Decree No. 13196 of Dec. 31, 190), Article 41 (2) of the Enforcement Decree of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1849 of Mar. 9, 191) of the same Act are illegal.

The court below's determination that the defendant, who is the tax authority, bears the burden of proving the tax requirement of "a person who objectively shows the fact" as prescribed by the above Enforcement Rule, is just in accordance with the precedents of party members (see Supreme Court Decision 88Nu2861, Mar. 13, 1990; Supreme Court Decision 90Nu837, Apr. 10, 1990). The court below's determination that there is no evidence to acknowledge such requirement. The defendant's proof No. 27-1 of the above evidence No. 27 of the plaintiff and the above non-party 1 merely indicates that the plaintiff and the non-party 1 were in the same workplace relationship, and does not prove the fact that it is objectively obvious. The arguments are without merit.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Chang-chul (Presiding Justice)