(a) The case holding that there is an error of law in not examining whether a company under incorporation has substance at the time of purchase, while recognizing that the company under incorporation purchased land; and

B. Whether the existence of a separate agreement not stated in the disposal document can be acknowledged by free evaluation (affirmative)

(c) Requirements for determining the corporate tax base by the method of estimated assessment;

A. If the Plaintiff Company intends to purchase the instant land at the stage of incorporation, it shall prepare its articles of incorporation at the time of purchase, and shall examine and confirm whether the promoters have the substance of the company, such as accepting more than one share of stocks.

B. The court may recognize the existence of a separate agreement not stated in the disposal document by its free evaluation of evidence.

C. The fact that the taxpayer did not keep the books in order to determine the corporate tax base by the method of an estimated investigation is insufficient. It is allowed only when the taxpayer pointed out the illegality of the evidentiary materials presented by requesting the taxpayer to produce all kinds of evidentiary materials and investigated them after being presented new materials, and the tax base and tax amount cannot be determined even if based on the materials, or when the tax authority cannot obtain taxation data for the on-site investigation by any other means.

(a) Article 13 of the Framework Act on National Taxes; Article 172 of the Commercial Act; Articles 187 and 328 of the Civil Procedure Act; Article 32(3) of the Corporate Tax Act; Article 93(1)1 of the Enforcement Decree of the same Act

A. Supreme Court Decision 84Nu678 delivered on July 23, 1985 (Gong1985, 1196) (Gong1985, 1196). Supreme Court Decision 83Nu528 delivered on April 24, 1984, Supreme Court Decision 84Nu788 delivered on October 22, 1985 (Gong1985, 1562) 86Nu85 delivered on June 24, 1986 (Gong1986, 954 delivered on March 10, 1987) 86Nu721 delivered on March 10, 1987 (Gong198, 656) 87Nu9666 delivered on May 24, 198 (Gong10108, 101) 108Nu15837, Oct. 17, 1985)

Sung Jinsan Stock Company

Head of North Busan District Tax Office

Busan High Court Decision 89Gu701 delivered on February 23, 1990

The portion of the judgment of the court below regarding corporate tax and defense tax for the year 1984 shall be reversed.

The above reversed part of the case is remanded to Busan High Court.

The defendant's remaining appeals are dismissed.

We examine the Defendant’s grounds of appeal.

1. Points concerning the receipt of land;

According to the reasoning of the judgment below, the court below, based on the evidence adopted by the court below, found that the plaintiff was a corporation established on March 13, 1984 and had it purchase farmland, etc. from the time of its establishment for the purpose of its purpose of its establishment, on the ground that the corporation could not acquire farmland, and caused the plaintiff to purchase the land of 18 parcels of land as stated in the attached document No. 18 in the judgment of the court below on December 12, 1983, on the ground that the non-party, the father of all female female employees, was the father of the YY, and had the non-party purchase the land, and registered the transfer of ownership in the future of the plaintiff on May 4, 1984, and was returned to the plaintiff on May 4, 1984.

However, in order for the Plaintiff to purchase the above land at the stage of corporate establishment, at least the articles of incorporation should be prepared at the time of purchase, and the promoters should have the actual status as an incorporated company during the process of incorporation such as accepting more than one share of shares (see Supreme Court Decision 84Nu678, Jul. 23, 1985). Even if examining the record, there is no evidence suggesting that the Plaintiff had the substance as a company in the process of incorporation before March 13, 1984, the date of incorporation registration, and there is no evidence suggesting that the Plaintiff had the substance as a company in the process of incorporation. However, the non-party Kim Jong-ho, the actual owner of the Plaintiff company, purchased the above land in preparation for the establishment of the Plaintiff company

Therefore, the lower court cannot be readily concluded that the Plaintiff is not a donation of the instant land due to the reasons indicated in its reasoning, without examining whether the Plaintiff was either a company established during the process of the purchase of the said land and whether the Plaintiff purchased the said land, whether the individual purchased it, or whether the said land was invested in kind in the Plaintiff Company or transferred for consideration, at the time of the purchase of the said land.

Therefore, the judgment of the court below has failed to examine the time of incorporation of the company under incorporation, and it is reasonable to point out the facts without evidence.

2. The occurrence of exchange marginal profits;

The court can recognize the existence of a separate agreement not entered in the disposal document by its free evaluation, and it does not necessarily prove the fact of the company's monetary expenditure only by the account book. Although subparagraph 4-6 exchange contract No. 4-6 exchange contract does not state that the plaintiff paid 1,00,000 won as a supplement to the exchange land, considering the evidence adopted by the court below, recognizing the fact that the plaintiff paid the above money to Jeong-ho was not contrary to the contents of the above contract which is a disposal document, and comparing each evidence of the employment of the court below with the records, the court below's fact-finding is acceptable, and it cannot be said that there was an error in the rules of evidence against the rules of evidence, as pointed out above, and there is no ground for appeal.

3. Matters concerning the legality of the estimated taxation; and

According to the reasoning of the judgment below, on the ground that the plaintiff does not have any account books or documentary evidence for calculating the leased income, the court below found that the defendant imposed the tax of this case on the leased income of KRW 3,200,000 by multiplying the annual rent revenue recognized by the rental contract by the income standard rate, but the plaintiff paid the management expenses of KRW 200,000 per month to the administrator for the collection of the above rent revenue and the management of land. In this case, the case was simply determined that the defendant calculated the rent income by the estimation method on the ground that there was no account books or documentary evidence which could not be assessed by the real investigation of the above rent income omitted by the plaintiff, and the contents of the estimation are also inconsistent with the rationality and validity of the estimation. Thus, the part of taxation on the above rent income which failed to meet the estimation requirement was wholly unlawful.

The court below did not err in the misapprehension of the rules of evidence or the incomplete hearing as pointed out in the theory of the lawsuit in the process of cooking evidence which was conducted by the court below.

The corporate tax base is insufficient only to the fact that the taxpayer did not keep the books in order to determine the corporate tax base by the method of estimated investigation. The evidence presented by the taxpayer after requesting the presentation of all kinds of evidence is pointed out and being presented new materials are examined, and the tax authorities are allowed only when it is unable to determine the tax base and tax amount even if it is based on the data, or when the tax authorities cannot obtain the taxation data for real investigation by any other means (see, e.g., Supreme Court Decision 83Nu528, Apr. 24, 1984; Supreme Court Decision 84Nu788, Oct. 22, 1985; Supreme Court Decision 86Nu721, Mar. 10, 1987; Supreme Court Decision 86Nu721, Mar. 10, 1987; Supreme Court Decision 85Nu859, May 24, 1987; Supreme Court Decision 87Nu68187, Oct. 24, 1987).

4. For reasons above, the part of the judgment of the court below regarding corporate tax and defense tax for 1984 shall be reversed, and the case shall be remanded to Busan High Court. The remaining appeal shall be dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)