The burden of proving that the amount of an omission in the sales of a corporation not entered in the account book was not an omission (=total omitted amount) and that it was not an outflow (=the corporation)

Where a corporation fails to enter its sales in the account book despite the fact of sales despite the fact of sales, the full amount of the omitted sales, including the cost of purchase of raw materials, shall be deemed to have been leaked out, except in extenuating circumstances. In such cases, the special circumstance that the omitted sales, including the cost of purchase of raw materials, shall be proved by the corporation's assertion.

Article 32 of the Corporate Tax Act; Article 94-2 of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 13195, Dec. 31, 1990); Article 26 of the Administrative Litigation Act / [Burden of proof]

Supreme Court Decision 85Nu807 decided Apr. 14, 1987 (Gong1987, 817) 90Nu3751 decided Dec. 26, 1990 (Gong1991, 661) 92Nu6747 decided Aug. 14, 1992 (Gong192, 2694)

Attorney Lee Byung-chul, Counsel for the defendant-appellant

The Director of Gangnam District Office

Seoul High Court Decision 90Gu21331 delivered on November 25, 1992

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

If a corporation fails to enter its sales on the account book despite the fact of sales, the total amount omitted from sales, including the cost of raw material purchase, shall be deemed to have been leaked out to the company, except in extenuating circumstances. In this case, the special circumstance that the omission in sales is not leaked to the company outside of the company should be proved by the party member (see Supreme Court Decision 90Nu3751 delivered on December 26, 1990).

The court below's decision is just in rejecting the plaintiff's assertion that the deducted amount should be disposed of as bonus by the representative director, since the amount of the plaintiff's omission in sales without recording the amount of the plaintiff's sales before August 31, 198, includes the countermeasure expenses for the omission in sales, and there is no such evidence, and there is no violation of the rules of evidence or misapprehension of the legal principle, such as the theory of lawsuit, and there is no illegality in the rules of evidence or misapprehension of the legal principle

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 Park Jong-dong (Presiding Justice)