The burden of proof for legality and rationality of the estimation of value-added tax

If there are reasons under the proviso of Article 21(2) of the Value-Added Tax Act, the government may estimate the tax base of value-added tax and the amount of tax payable for value-added tax, but the burden of proving that the existence of the estimation cause and the method of estimation, and that the content of the estimation are reasonable and reasonable reflecting the actual amount of income is imposed on the tax

Article 21 of the Value-Added Tax Act

Supreme Court Decision 85Nu62 Decided July 9, 1985

[Judgment of the court below]

The Director of Gangnam District Office

Seoul High Court Decision 85Gu725 delivered on November 12, 1985

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. If there are reasons under the proviso of Article 21(2)1 and 21(2)2 of the Value-Added Tax Act, the government may estimate the tax base of value-added tax and the amount of tax payable pursuant to the Presidential Decree. However, if there is a dispute over the legitimacy of such estimate, the government shall have the burden of proving that the existence of the estimation reason, the method of calculating the estimation, and the reasonable and reasonable method reflecting the actual amount of income. The court below's decision is justified in its reasoning because there is a difference between the average daily turnover on the books kept by the plaintiff and the turnover surveyed by the National Tax Service officials belonging to the National Tax Service during a short period of time, it cannot be readily concluded that all of the books and other evidence of the plaintiff's establishment are false, and there is no proof by the defendant as to the existence of the cause of the estimate, and the method of estimating the total amount of tax paid based on the daily turnover on the basis of the total amount of the turnover during the previous period of investigation conducted by the defendant does not fall under any of the estimation method under Article 69(1)1)1 of the Enforcement Decree.

2. According to the records, it is clear that the Defendant indicated only the Plaintiff (Plaintiff) and 2, and there is no specific indication of the taxpayer. Thus, even if the Plaintiff and the non-party 1 and the non-party 2 and the non-party 2 are joint business operators, the above taxation disposition is deemed to have been imposed and notified on the Plaintiff (the Plaintiff). Upon the Plaintiff’s request, the court below is just in the disposition that revoked the entire taxation disposition, and there is no error in the misapprehension of the law. Thus, there is no ground to charge that there is no error in the misapprehension of the law.

3. 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 Yoon Il-young (Presiding Justice) Gangwon-young Kim Young-ju