(a) Requirements for adoption of estimated taxation by method of partner authority;

(b) Allocation of burden of proof between the tax authority and the taxpayer in the estimated taxation by means of partner authority.

C. Whether the measure setting the tax base is appropriate in determining the total amount of income for a single business place during the same taxable period by mixing the on-site investigation and the estimated investigation (negative)

A. It is intended to investigate and determine the tax base close to the actual amount on the basis of the revenue amount calculated according to the balance with other business entities of the same business type, which is applied mutatis mutandis by Article 169(2)1 of the Enforcement Decree of the Income Tax Act, which is applied mutatis mutandis by Article 159(6) of the same Act. Thus, it should be highly probable that the entry of records on the revenue, etc. of the same kind of business, which is used as the comparative standard, should be the amount recognized by accurate books and documentary evidence, and even if the same business type is the same, the specific business situation is identical or at least similar to the business situation of the

B. In order to be recognized that there is a probable probability that the total amount of income of the relevant business operator will depend on the total amount of income of the same business operator as the comparison standard, the tax authority must prove the objective similarity of the conditions of the relevant business place to the extent acceptable, and only that is, it can be recognized the rationality of the tax disposition based on the import estimation. In this case, even if the business conditions are met objectively, there is a case where the sales cannot be conducted due to the subjective factors of the business operator, but it is necessary to prove that there is an unreasonable calculation by presenting specific data about the exceptional circumstances.

C. If the determination of the global income tax base, etc. is based on the determination of the total income amount on the taxable object of a single place of business in the same taxable period, if the tax base is determined by mixing the on-site investigation and the estimated investigation, it would

(b)Article 120 of the Income Tax Act, Article 169 (b) of the Enforcement Decree of the same Act, Article 26 of the Administrative Litigation Act;

(a)B. (c) Supreme Court Decision 92Nu1353 Decided September 14, 1992 (dong) c. Supreme Court Decision 84Nu216 Decided March 25, 1986 (Gong1986,712), Supreme Court Decision 89Nu508 Decided January 23, 1990 (Gong190,569), Supreme Court Decision 88Nu637 Decided February 27, 1990 (Gong190,807)

Plaintiff’s Lee Jong-soo, Counsel for plaintiff-appellant

Head of Mapo Tax Office

Seoul High Court Decision 90Gu2538 delivered on December 4, 1991

The part of the judgment below against the plaintiff shall be reversed and remanded to the Seoul High Court.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Compared with the record, it is sufficient to recognize the fact that the Plaintiff acquired the rent revenue in the judgment by leasing the building at the time of original adjudication with the content as stated in its reasoning. As such, all of the fact-finding of the lower court and the measures such as cooking evidence leading thereto are justifiable.

No reason exists because the theory is nothing more than criticism against any measure on the preparation of evidence and fact-finding by the fact-finding court.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment of the court below, the court below found that the plaintiff's multiple-management income from the plaintiff's multiple-management as stated in its judgment was based on the actual inspection of income from the plaintiff's multiple-management from December 1986 to March 1987, and that the plaintiff's multiple-management's multiple-one thousand,770,682 won, which is the size, number of employees, and number of trustees, is estimated as income from the plaintiff's non-party's non-party's management "○○○○○○○" multi-party's revenue. The court below determined that the defendant's imposition of value-added tax cannot be deemed unreasonable on the ground that the amount of sales for the period during which the plaintiff's account book or evidence is not equipped, and it is unreasonable to estimate the amount of the plaintiff's import declaration as the amount of the plaintiff's revenue, number of employees, number of consignees, and the amount of the plaintiff's multiple-management's revenue from January 1 to 3, 1987.

However, the estimation of tax base, etc. under tax law is exceptionally acknowledged in cases where it is impossible to investigate and determine actual income or actual income, and there is the burden of proof for the defendant who is the tax authority with regard to the requirements for estimated taxation and the rationality of the method of estimation. In the estimation of total amount of income by business place, the estimation by the method of partner authority under Article 169 (2) 1 which applies mutatis mutandis under Article 159 (6) of the Enforcement Decree of the Income Tax Act is also intended to investigate and determine the tax base close to actual amount based on the amount of income calculated according to the balance with other business operators of the same business type. Thus, the entry of income, etc. of the same kind of business as the comparison criteria should be the amount recognized by accurate books and documentary evidence, as well as even if the same type of business is the same, it should be highly probable

Therefore, the defendant, who is a tax authority, should prove that there is an objective similarity with the conditions of the business place to the extent that he can accept that the revenue will take advantage of the total revenue amount of the same kind of business as the comparison standard, and only it can be recognized the rationality of the tax disposition based on the import estimation. In this case, even if the same business conditions are met objectively, there are cases where the sales can not take place due to the subjective factors of the business operator, but it is necessary to prove that there is an unreasonable estimation by presenting specific material about such exceptional circumstances.

According to the records, it seems that the business place of the enterpriser, which the Defendant used as the revenue comparison standard with the Plaintiff, appears to be far away from the Plaintiff’s business place, and the business place of the above comparable enterpriser is located at the center, as alleged by the Plaintiff, and the Plaintiff’s business place was located at the center. Thus, if the above circumstances were to exist, it is difficult to deem that the Defendant’s estimation method that the above other enterpriser’s income was immediately the Plaintiff’s income is the Plaintiff’s income is unreasonable. The lower court deemed that the estimation was not unreasonable on the ground that the estimated amount of the Plaintiff’s income for three months is more than the Plaintiff’s actual income for three months in different three months. However, even though the Defendant considered that the estimated amount of the estimated amount of the Plaintiff’s income for three months was not unreasonable, it is difficult to determine the rationality of the estimated tax by the unreasonable estimation method only based on the size of the value calculated by the estimation method, and the party member did not have any such position

Furthermore, the global income tax base, etc. of this case, which the Defendant estimated the income for 3 months as above, added up with the revenue for 3 months other than the on-site investigation of the first half-year taxable period of 1987 and the revenue amount reported by the Plaintiff for the remaining period, shall be the total revenue amount for the pertinent year, is determined by mixing the tax base with on-site investigation and the estimated tax investigation during the same taxable period. Thus, it violates the relevant provisions of the income tax and its Enforcement Decree (see, e.g., Supreme Court Decision 88Nu6337, Feb. 27, 1990; Supreme Court Decision 89Nu5508, Jun. 27, 1989; 88Nu712, Jun. 27, 1989; 84Nu216, Mar. 25, 1986; 78Nu381, Dec. 26, 1978).

Ultimately, just because the court below stated, it cannot be deemed that the calculation method, such as the tax base of the global income tax of this case, was lawful merely because the defendant's partial estimation was proved or based on the partial estimation.

Unlike this purport, the court below did not err by misapprehending the legal principles on the estimation correction of the Income Tax Act, which judged that the correction disposition of this case was lawful, and it is clear that this affected the part of the judgment below's failure, and thus, it cannot be exempted from reversal. There is a reason to point this out.

Therefore, the part of the judgment below against the plaintiff is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Jong-ho (Presiding Justice)