Article 3-3 subparagraph 5 of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 13806 of Dec. 31, 1992), the meaning of special relation and burden of proof

According to Article 9-3 (2) 4 of the Customs Act and Article 3-3 (5) of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 13806 of Dec. 31, 1992), in order to exempt the taxable value from the market price under Article 9-3 (1) of the Customs Act, one of the buyers and sellers must have a special relationship that directly or indirectly manages the other. The relationship that directly or indirectly manages the other party refers to the case where one is in a position that can exercise the control or direction over the other legally or in fact, and the burden of proof is against the tax authority.

Article 9-3(2)4 of the Customs Act; Article 3-3 subparag. 5 of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 13806 of Dec. 31, 1992); Article 26 of the Administrative Litigation Act / [Burden]

Supreme Court Decision 82Nu460 decided Dec. 13, 1983 (Gong1984, 1991) 93Nu4007 decided Jul. 13, 1993 (Dong)

Plaintiff

Head of Kim Jong-po

Seoul High Court Decision 92Gu666 delivered on October 1, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

According to Article 9-3 (2) 4 of the Customs Act and Article 3-3 (5) of the former Enforcement Decree of the Customs Act (amended by Presidential Decree No. 13806 of Dec. 31, 1992), in cases where one of the buyers or sellers directly or indirectly manages the other, the taxable value may not affect the price of the goods concerned. Thus, in accordance with the provisions of the above Acts and subordinate statutes, one of the buyers or sellers must manage the other directly or indirectly, in order not to follow the transaction price stipulated in Article 9-3 (1) of the Customs Act. The relationship between the buyer and the seller directly or indirectly refers to cases where one is legally or practically able to exercise control or direction over the other, and the burden of proof as to the relation is the defendant who is the tax authority.

The judgment of the court below is justified in light of the records, and there is no error in the misapprehension of legal principles or the rules of evidence as pointed out by the court below in light of the records, since it is not possible to transfer the status under the agreement of the court below and the plaintiff sought a prior adoption or introduction of the above respondent in contact with the Roman company in Japan, even though it is not possible for the plaintiff to directly or indirectly manage the plaintiff, when the plaintiff imports and sells skiing products from the Austrian limited company, the plaintiff decided on the price, conditions of delivery, and whether it is a sub-contract, etc. of imported goods through free negotiation with an independent position from the above Austrian company, and there is no interference with the domestic sale price, etc. after importation.

Meanwhile, according to the records, although it is clear that the defendant asserted the reason under Article 9-3 (2) 2 of the Customs Act as the reason for the taxation of this case, the court below erred in failing to make any decision, but in light of the above facts acknowledged by the court below, the plaintiff's reported price at a discount of 5 percent cannot be deemed to have been affected by the conditions or circumstances that cannot be calculated as the amount of the transaction or the determination of price of the goods concerned under the above Article. Thus, the above error of the court below did not affect the conclusion of the

In addition, the remaining arguments are nothing more than pointing out the judgment of the court below on the premise of a different view. All arguments are groundless.

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 Kim Yong-sung (Presiding Justice)