(a) The base date for calculating the value of housing sites invested by one of the entrepreneurs who have concluded a partnership business contract on the new construction and parcelling-out of tenement houses;

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

(a) The land in which one of the entrepreneurs who form a partnership upon entering into a contract for the new construction of a tenement house and the sale of buildings in units, has invested is the asset transferred to the partnership for the joint business. Therefore, the calculation of the purchase price of the raw materials provided in the former part of Article 60(1)1 of the Enforcement Decree of the Income Tax Act and the incidental expenses should be based on the purchase price of the materials provided in the former part of Article 60

B. Since the tax authority bears the burden of proving the legality of a taxation disposition, the tax authority has the burden of proving the necessary expenses, which are the basis of determining the amount of income, in principle, and the tax authority has the burden of proving the amount of income. However, it is merely a case where the taxpayer bears the burden of proving the amount of income, considering the equity between the parties, etc., which is the necessary expenses for calculating the amount of the business income of this case, the burden of proving the legality of the taxation disposition is not the defendant who bears the burden of proving the amount of income,

(a) Article 31 of the Income Tax Act, Article 60 (1) 1 (b) of the Enforcement Decree of the Income Tax Act, Article 14 of the Administrative Litigation Act, Articles 261, 262 of the Civil Procedure Act, and Article 31 of the Income Tax Act;

[Judgment of the court below]

Director of the tax office

Seoul High Court Decision 82Gu953 delivered on November 30, 1983

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

1. We examine the grounds of appeal by the defendant litigation performer.

(1) The facts confirmed by the court below in this case are as follows. In other words, the plaintiff and the non-party 1 bear 1/6 of construction costs in addition to the investment of the above site, and the plaintiff and the non-party 2 and the non-party 1 bear 5/6 of construction costs and share profits earned from the project with the non-party 2 and the non-party 4 (the non-party 2 and the non-party 4, etc.) according to the above construction cost ratio, the non-party 2 and the non-party 4 together with four parcels of land (the address 1 omitted) through 316 square meters (the address 2 omitted) and (the address 4 omitted) are indicated as four parcels of land (the plaintiff 3 omitted) and the non-party 2 and the non-party 1 indicated as four parcels of land, but they are the total income of the housing unit for the taxable period of 10 years, and the profits earned from the project are distributed in accordance with the above construction cost ratio.

(2) According to Article 60(1) of the Enforcement Decree of the Income Tax Act, the necessary expenses which correspond to the gross income of each year of real estate income and business income are as enumerated in the following subparagraphs. 1. Purchase price of raw materials for commodities or products sold and incidental expenses. In this case, if a business operator has offered the service of commercial use, it shall be the original purchase price and incidental expenses at the time of purchase by the business operator. 2. The book value at the time of transfer of real estate (limited to real estate sales; hereinafter the same shall apply.) is stipulated as the book value at the time of transfer of real estate. Meanwhile, Article 33(2) of the Enforcement Decree of the Income Tax Act provides that a

In light of the above provisions, since the business that the plaintiff and the non-party newly built and sold a house in this case constitutes a construction business, the necessary expenses for such business income shall be calculated in accordance with the provisions of Article 60 (1) 1 of the Enforcement Decree of the Income Tax Act. Thus, since the plaintiff and the non-party who formed a partnership by entering into a partnership business contract and the housing site that the non-party 2, etc. invested by the non-party 2, etc. are the assets transferred to the above partnership for the joint business, the calculation of the above housing site amount shall be based on the purchase price of raw materials and the incidental expenses provided for in the former part of Article 60 (1) 1 of the Enforcement Decree of the Income Tax Act and the value

The issue is that four business operators, the above non-party 2, and the above non-party 2, etc., were purchased for any purpose other than business, so it is necessary to calculate necessary expenses with the purchase price and incidental expenses at the time of the initial acquisition by four non-party 2, etc., pursuant to the latter part of Article 60 (1) 1 of the above Enforcement Decree. However, the above apartment house construction and sale business operator cannot be deemed as four individuals, such as the above non-party 2, who formed the association, and the above non-party 2, etc., who were the owner of the above land. Thus, it does not constitute a business for the purpose of business

Therefore, the court below's decision that the calculation of necessary expenses for the site of this case should be based on the value at the time of the investment for the above joint project not on the original acquisition price, but on the price at the time of the investment by the non-party 2, etc. is just and does not contain some deficiencies in the explanation of the reason at the time of original adjudication, but it cannot be viewed that there was an error of interpretation contrary to the principle of no taxation without law

(3) In addition, the lower court’s determination that the value at the time of the investment in the said site was KRW 79,00,000 and that it was calculated as necessary expenses, thereby violating the rules of evidence.

However, since the tax authority has the burden of proving the legality of taxation, the tax authority has the burden of proving the necessary expenses, which are the basis of determining the amount of income, in principle, the tax authority has the burden of proving the amount of income, but it is true that the taxpayer has the burden of proving the amount of expenses in consideration of equity between the parties.

Therefore, in cases where it is reasonable to calculate the value of the site, which is the necessary expense for the business income of this case, based on the value at the time when the owner of the site invested in the business, the fact that the value is much much shall be proven by the defendant who bears the burden of proof as to the legality of taxation, and not by the plaintiff. According to the records, the defendant did not prove this point, and the court below should have revoked the disposition of this case on the ground that there is no proof as to

However, the court below recognized that the value of the above site is equivalent to 79,00,000 won by the plaintiff's proof and calculated the amount of income based on this basis, and only part of the certificate of taxation of this case is revoked. Even if the court below's recognition of necessary expenses was erroneous, the defendant who did not prove that the value at the time of investment was less than that at the time of the court below's approval cannot be found to be erroneous and erroneous. This issue is without merit.

2. 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 Lee Lee Sung-soo (Presiding Justice)