Whether a person who bears the burden of proving the fact of taxation requirement in a lawsuit seeking revocation of tax imposition (=the person who bears the burden of proving the taxation requirement) and the statement of a person who is not a taxpayer prepared in the course of investigation by the investigation agency or the tax authority can be considered as taxation

Article 26 of the Administrative Litigation Act (Liability for Certification)

Supreme Court Decision 85Nu887 delivered on January 20, 1987 (Gong1987, 374) Supreme Court Decision 2003Du14284 Delivered on April 27, 2004 (Gong2004Sang, 919) Supreme Court Decision 2005Du5604 Delivered on November 15, 2007

Plaintiff (Attorney Kim Jong-jin, Counsel for the plaintiff-appellant)

port of origin

Seoul High Court Decision 2008Nu20989 decided February 12, 2009

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

The grounds of appeal are examined.

According to the evidence and records adopted by the court below, the plaintiff was engaged in the non-party 1's sales business for 0 years, and the non-party 1's non-party 2's non-party 1's non-party 2's non-party 5's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 5's non-party 2's non-party 2's non-party 1's non-party 2's non-party 5's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 6's non-party 2's non-party 2's non-party 1's non-party 3's non-party 1's non-party 6's non-party 2's non-party 2's non-party 3's non-party 1's non-6'

In light of the above facts, the lower court determined that the instant tax invoice appears to have been prepared and issued to the Plaintiff by Nonparty 1 without real transactions, on the grounds that: (a) Nonparty 4 was habitually issued a false tax invoice; (b) the Plaintiff was guilty of having issued the instant tax invoice; (c) the Plaintiff failed to submit objective books or evidentiary documents related to the instant transaction; and (d) Nonparty 4 was actually transferred the amount under the instant tax invoice to the bank account on the same day or at least three (3) days; and (b) Nonparty 1 actually withdrawn the amount under the instant tax invoice from the bank account on the same day or at least three (3) days.

However, the above judgment of the court below is hard to accept.

In a lawsuit seeking revocation of a disposition imposing tax, the burden of proof on the person liable for tax payment shall be the person liable for taxation. On the other hand, a statement made by a person other than the person liable for tax payment prepared in the course of investigation by an investigation agency or a tax authority is merely a statement made by the person other than the person liable for tax payment, unless there is evidentiary evidence that conforms to the statement or there is no complementary investigation such as confirmation of facts about the person liable for tax payment, and barring any special circumstances (see, e.g., Supreme Court Decision 85Nu87, Jan.

In this case, the Plaintiff denied that the instant tax invoice was false by asserting that it was issued after having actually traded with Nonparty 6, a land owner of Nonparty 1, and transferred transaction amounts to the account designated by Nonparty 6. Therefore, in order to take the Nonparty 4’s statement that “the instant tax invoice was falsified,” which is one of them as legitimate taxation data, the Plaintiff shall either obtain evidence that corresponds to the fact that the amount remitted by the Plaintiff was returned to the Plaintiff, or obtain the credibility of the said statement through supplementary investigation such as confirmation of facts, etc.

However, the fact that most of the money remitted to the account of Nonparty 1 was withdrawn within 3 days alone cannot be readily concluded that the Plaintiff received the said money. Unlike the records, there is no evidence to acknowledge that the Plaintiff received the said money. Nonparty 4 could not find any ground for distinguishing between Nonparty 1 and the 72 processing transaction company. Furthermore, according to the above facts, the head of Nowon Tax Office did not investigate the confirmation of the remaining financial data related to the instant tax invoice, which the Plaintiff believed Nonparty 4’s above statement, and determined that the instant tax invoice was false without investigating the confirmation of the facts against the Plaintiff who submitted the financial data related to the instant tax invoice. Furthermore, the Plaintiff did not have an opportunity to resist Nonparty 4’s statement during the tax authority’s investigation, as well as there was no room for cross-examination as Nonparty 4’s unknown whereabouts during the instant trial process.

Comprehensively taking account of such circumstances, Nonparty 4’s statement written at the end of the preceding half-yearly statement is without evidentiary materials consistent with the contents of the statement, and was not subject to complementary investigation such as confirmation of facts against the Plaintiff, who is the taxpayer, and is merely a unilateral statement that was not given the opportunity for rebuttals or cross-examination, and thus, it cannot be easily viewed as data for taxation unless there are other special circumstances.

Of the other circumstances indicated by the lower court, it cannot be deemed that Nonparty 4 issued a false tax invoice habitually or that the credibility of Nonparty 4’s statement concerning the instant tax invoice is increased individually solely on the grounds that Nonparty 4 was charged by the issuance of the instant tax invoice. In addition, the burden of proving the facts requiring taxation exists at the tax authority, but if the facts alleged in light of the empirical rule in the process of litigation are revealed, it is necessary to prove the opposite facts, etc. by the taxpayer only at that time. Therefore, in this case where the Defendant failed to prove to the extent that it can be presumed that the instant tax invoice was false, the fact that the instant tax invoice was false cannot be acknowledged on the ground that the Plaintiff failed to submit books or evidential documents other than the financial data as seen earlier.

The judgment of the court below is erroneous in the misapprehension of legal principles as to the burden of proof of taxation requirement and the eligibility of a person who is not a taxpayer in the course of investigation by the tax authority, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)