(a) the assertion that a tax imposition disposition was made at a politically uniform level and the need for its proof;

(b) The burden of proving the necessary expenses for determining the amount of income;

(c) The scope of omissions and errors that may correct the tax base and amount determined through a written examination.

A. In an administrative litigation seeking revocation on the grounds of illegality of taxation, in principle, the tax authority bears the burden of proof with respect to the legality of the taxation disposition and the existence of the facts requiring taxation, but the existence of special circumstances belonging to this precedent under the empirical rule is considered to have returned to the taxpayer the burden of proof or proof. Therefore, the court below's rejection of the above assertion by the plaintiff, who is the taxpayer with the duty to pay tax of global income tax of this case, is against the constitutional principles of guarantee of property rights of the people, because the decision of correction of the tax base and tax amount of global income tax of this case and the disposition based thereon are made at a political uniform level, and there is no evidence to acknowledge it as to

B. In principle, the tax authority has the burden of proving the amount of necessary expenses, which are the basis of the determination of the amount of income, and the burden of proving the specific items of expenses has the burden of proving the amount of expenses in consideration of equity between the parties. However, the "ordinary expenses" ordinarily required by the taxpayer in order to obtain the income must be proved by the tax authority, but the "ordinary expenses" which are presumed actually non-existence in light of the empirical rule has the burden of proving the existence of the taxpayer.

C. Where a determination of tax base and tax amount is made in writing based on Article 119(1) of the Income Tax Act, Articles 167(1) and 168 of the Enforcement Decree of the same Act, etc., the tax authorities may correct them only if it is objectively evident that there was an omission or error in the tax base and tax amount after the fact that they were not included in the taxpayer’s declaration nor were they committed an omission or error by the taxpayer’s declaration itself. However, the tax authorities may correct them only if it is objectively evident that they were not included in the taxpayer’s declaration nor were they committed an omission or error by the taxpayer’s declaration, and cannot correct the tax base

(a)Article 261(b) of the Civil Procedure Act; Article 31(c) of the Income Tax Act; Articles 119, 127 of the Income Tax Act; Articles 167 and 168 of the Enforcement Decree of the Income Tax Act;

A. Supreme Court Decision 84Nu362 delivered on March 12, 1985, 85Nu393 delivered on July 7, 1987, 85Nu5624 delivered on January 24, 1989. Supreme Court Decision 84Nu5624 delivered on July 24, 1989. Supreme Court Decision 88Nu4010 delivered on May 9, 1989. Supreme Court Decision 89Nu2073 Delivered on August 8, 1989.

[Defendant-Appellant] Plaintiff 1 and 3 others

Head of the Office of Government

Seoul High Court Decision 88Gu8229 delivered on April 14, 1989

The judgment below is reversed and the case is remanded to Seoul High Court.

1. We examine the first ground for appeal.

In an administrative litigation seeking the revocation of a taxation disposition on the ground of its illegality, in principle, the defendant, who is the tax authority, bears the burden of proof with respect to the legality of the taxation disposition and the existence of the taxation requirement fact (see Supreme Court Decision 85Nu393, Jul. 7, 1987; Supreme Court Decision 88Nu5624, Jan. 24, 1989); however, the existence of a special circumstance that falls under the precedent of the empirical rule, in light of the empirical rule, requires the plaintiff, who is the taxpayer, to bear the burden of proof or proof (see Supreme Court Decision 84Nu362, Mar. 12, 1985). Thus, the court below rejected the above assertion on the ground that the decision of correction of the global income tax base and tax amount of the global income tax and the imposition based thereon are made at a political uniform level, and it is against the constitutional principle of guaranteeing the property rights of the people, and there is no predictability and there is no evidence to acknowledge it as to the plaintiff's assertion that it violates the good faith.

2. We examine the grounds of appeal Nos. 2 and 3.

(1) In principle, the tax authority has the burden of proving the amount of necessary expenses, which are the basis of the determination of the amount of income, and there is a case where the taxpayer bears the burden of proving the specific items of expenses in consideration of equity between the parties (see Supreme Court Decision 84Nu8, Jul. 24, 1984). In this case, the "ordinary expenses" ordinarily required by the plaintiff, who is the tax authority, should prove the absence thereof, and the "ordinary expenses" which are presumed to be virtually non-existence in light of the empirical rule, shall be the plaintiff who claims the existence thereof.

Therefore, the court below's determination that the disposition of the defendant's tax authority, which added the total amount of expenses without evidentiary documents, such as the slips, is legitimate without examining the plaintiff's burden of proof to any extent among the necessary expenses of this case, is erroneous in the misapprehension of legal principles as to the burden of proof of necessary expenses. However, in this case, prior to the issue of burden of proof of necessary expenses, it is a matter of the legitimacy of the substantive investigation and the disposition of imposition of the decision of correction, and the above disposition of imposing the decision of correction should be revoked illegally. Thus, the above illegality of the court below cannot be seen as affecting the judgment. Thus, it is without merit.

(2) Based on macro-Evidence, the lower court determined that: (a) the Plaintiff, who is a person subject to a written investigation and determination of the tax base and tax amount as a document investigation on KRW 7,172,140 (the lower court’s amount of KRW 7,142,140) and KRW 560,539, global income belonging to the year 1986, which was reported with the adjusted account statement of the tax accountant; (b) subsequently determined the tax base and tax amount as the content of the report; and (c) subsequently determined the tax base and tax amount as the amount of the necessary expenses reported on September 25, 1987 by adding them to deductible expenses and KRW 19,849,90, KRW 500, and KRW 390 without any documentary evidence such as the total amount of income and expenses indicated in the table; and (d) determined the tax base and tax amount under Article 16(1)17 and Article 750(1)14 of the Enforcement Decree of the Income Tax Act, which were lawful; and (16)14)10 of the tax base and tax amount of this case.

However, the Plaintiff’s income amount of KRW 20,350,290 ( KRW 19,849,90 + 500,390) that the Defendant asserts that the tax base was omitted is income accrued by excessively appropriating necessary expenses in calculating the tax base. As such, where the Plaintiff’s tax base and tax amount are determined through a written deliberation by the taxpayer’s return based on Article 119(1), Article 167(1), and Article 168 of the Enforcement Decree of the Income Tax Act, etc., the tax authorities may correct the tax base and tax amount only if the tax base and tax amount were found later, even if they were not included in the taxpayer’s return, or if it is objectively apparent that the omission or error was committed by the taxpayer’s return itself, and the Plaintiff’s tax base and tax amount cannot be corrected based on the factual basis and tax amount on the spot investigation (see, e.g., Supreme Court Decision 8Nu4010, May 98, 198).

However, among the Plaintiff’s income asserted to be omitted by the Defendant, 501,300 won of the omitted sales was omitted from the Plaintiff’s income at the time of filing a return. As such, the Defendant’s measure to correct the tax base and tax amount by the actual investigation should be justified in accordance with the above legal principles, but the calculation of global income tax amount differs depending on the amount of income. Thus, the instant taxation disposition cannot be exempted from revocation as it is unlawful by the lower court’s error. Nevertheless, the lower court rejected the Plaintiff’s claim on the ground that the lower court erred by misapprehending the legal doctrine on the written investigation and correction, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Chang-chul (Presiding Justice)