[1] Requirements for recognition as bad debt

[2] The person who bears the burden of proof and the degree of proof in tax action

[3] Method of determining total amount of income and tax base

[1] In calculating the amount of income, the bad debt included in the necessary expenses is limited to the debt that is objectively confirmed in the year when it is impossible to collect in the year when it is included in the necessary expenses. The creditor, who is the payment business entity, obtained a promissory note issued by a third party from the debtor with respect to the loan claims while lending funds to the debtor, and the debtor runs away without any assets remaining after the business operation of the debtor, and even if the bill is rejected, the above loan claims cannot be deemed as bad debt unless the existence of the issuer of the bill is confirmed

[2] In general, in a lawsuit seeking revocation of the disposition imposing tax, the burden of proving the facts of taxation requirements shall be the person imposing tax, but if it is proved that the facts of taxation requirements have been presumed in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the other party is an illegal disposition that fails to meet the taxation requirements, unless the other party proves that the facts at issue are not eligible for application of the empirical rule.

[3] The total amount of income and the tax base are the number which serves as the basis for calculating the amount of tax, but the two are different in terms of the basis and stages for calculating the amount of tax, so the issue of how to determine and determine by any method should be determined separately depending on which the statutory grounds for the method of investigation are applicable, respectively. Since the two methods are not necessarily to be determined and determined by the same method, if it is possible to conduct an on-site investigation with respect to the total amount of income even if the tax base is determined by the method of estimation investigation

[1] Article 31(1) and (2) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; see current Article 27(1) and (2)); Article 60(1)13 of the former Income Tax Act (amended by Presidential Decree No. 14083, Dec. 31, 1993; see current Article 55(1)16; see current Article 55(2)); Article 26 of the Administrative Litigation Act / [3] Article 114-2(2) (see current Article 79); Article 120 (3) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; see current Article 80(3)); Article 60(1)13 (see current Article 55(2)) of the former Income Tax Act (amended by Presidential Decree No. 14803, Dec. 31, 1993)

[1] Supreme Court Decision 86Nu234 delivered on January 19, 198 (Gong1988, 413), Supreme Court Decision 96Nu1418 delivered on November 28, 1997 (Gong1998Sang, 156) / [2] Supreme Court Decision 84Nu124 delivered on July 24, 1984 (Gong1984, 1495), Supreme Court Decision 92Nu6761, 92Nu678, 92Nu6792 delivered on July 10, 1992 (Gong1992, 240), Supreme Court Decision 97Nu2429 delivered on October 24, 197 (Gong1997Ha, 3689, 1989) 97Nu3985989 delivered on May 39, 197 (Gong19985)

Plaintiff (Attorney Kim Yang-nam, Counsel for the plaintiff-appellant)

Director of the tax office

Seoul High Court Decision 95Gu2670 delivered on July 9, 1997

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

The grounds of appeal are examined.

1. On the first and sixth points

Article 31(1) of the former Income Tax Act (amended by Act No. 4803, Dec. 2, 1994) provides that the amount to be included in necessary expenses shall be the amount corresponding to the total income amount among the expenses finalized during the same period, and the principle for calculating profits and losses, and the principle for responding to the cost for profit and loss, and it shall be interpreted that the amount to be determined in the pertinent year shall not be the necessary expenses for the pertinent year, even if the amount to be determined in the pertinent year is the expenses corresponding to the income prior to the pertinent year, but the amount to be determined in the pertinent year is not the expense for the pertinent year. Since Article 31(2) of the former Income Tax Act (amended by Act No. 4803, Jul. 14, 1992; Article 94Nu7980, Sept. 30, 199); Article 31(2) of the former Income Tax Act (amended by Presidential Decree No. 13681, Dec. 13, 1993>

According to the records, it is evident that Gap's claim for indemnity equivalent to the amount stated in each certificate of subrogation of 50,51,52, which the plaintiff alleged as the bad debt of the 1988, is all the claim incurred only after 1989, and therefore, even if the above claim for indemnity was not recoverable, as alleged by the plaintiff, it cannot be viewed as a bad debt that should be deducted from the total amount of the plaintiff's sales revenue of the 1988.

또한 가사 원고의 주장과 같이 갑 제2호증의 53 내지 65의 약속어음 13매가 원고가 어음할인의 방법으로 소외 1에게 자금을 대여하면서 소외 1로부터 교부받은 어음들로서 그 각 지급기일에 각 지급거절되었고 채무자 소외 1이 1988. 10.경 그가 경영하던 ○○○○공업 주식회사, △△기계 등 모든 사업을 폐지하고 도피하여 행방불명이 되었다고 하더라도, 기록에 의하면, 위 갑 제2호증의 53 내지 65의 부도어음 13매는 소외 □□산업 주식회사, 소외 2(◇◇금속), 소외 3(☆☆산업), 소외 4(▷▷▷▷프레스), 소외 5(∇∇교육사) 등이 소외 1이 대표이사로 있는 소외 ○○○○공업 주식회사에게 발행·교부한 어음들인 사실을 알 수 있는바, 위에서 본 법리에 비추어 보면, 위 각 어음의 발행인들의 재산 유무가 확정되지 않는 한 원고의 주장과 같은 사유만으로는 원고의 소외 1에 대한 위 각 어음 액면 상당의 대여금채권 및 이자채권이 회수불가능한 채권으로서 대손금에 해당한다고 할 수 없다 할 것인데, 기록을 살펴보아도 위 각 어음의 발행인들의 잔존 재산이 없음을 인정할 자료를 발견할 수 없으므로 원고 주장의 위 각 어음 액면 상당의 대여금채권 및 이자채권이 대손금에 해당한다고는 할 수 없다.

Therefore, the court below's decision that did not accept the plaintiff's claim of bad debts is justified, and there is no error in the misapprehension of legal principles as to deduction of bad debts and necessary expenses for bad debts, or in violation of the former Income Tax Act and the former Enforcement Decree of the Income Tax Act, as otherwise alleged in the ground of appeal. However, the court below did not render a decision as to the plaintiff's argument that the non-party 1's loans and interest claims equivalent to the face value of each of the above bills against the non-party 1 can be recovered due to the discontinuation of the business, as otherwise alleged in the ground of appeal. However, the court below's error is obvious that there

2. On the second ground for appeal

In general, the burden of proving the facts of taxation requirement in a lawsuit seeking revocation of disposition imposing tax shall be deemed to have the imposing authority, but if it is proved that the facts of taxation requirement are presumed in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the other party is an unlawful disposition that fails to meet the taxation requirement, unless the other party proves that the facts in question are not eligible for the application of the empirical rule (see, e.g., Supreme Court Decisions 84Nu124, Jul. 24, 1984; 97Nu2429, Oct. 24, 197; 97Nu9895, Mar. 24, 1998).

According to the reasoning of the judgment below, the court below rejected the plaintiff's ground of appeal 12,682,235 won per month with interest rate of 2% or 3.5% per month from the non-party 1 who is the representative director or the non-party 1, who received interest rate of 2% or 3.5% per month from the non-party 1, 1987, and 182,170,936 won per year of 198. The court below rejected the plaintiff's ground of appeal 1 to 3-1 to 4 of the evidence 3-2 of the evidence employed by the court below. The court below rejected the plaintiff's ground of appeal pointing this out that the non-party 2-1 to 3-1 of the evidence 2-17 and 19 are false, and there are no errors in the misapprehension of legal principles as to the plaintiff 3-1, 2, and 5-2's assertion that the plaintiff 3-1, 3, and 5-2-19 were different.

3. On the third ground for appeal

According to the records, the plaintiff's findings of 1987 = 1,75,00 won (the amount of income subject to the income standard rate of 752,60) and 15,200 won (the amount of income shall be 8,208,00 won) were not reported for 1,323,79 won (the amount of income shall be 560,97) and 9420 won (the amount of income for 47,97, 974, 974, 97, 97, 974, 97, 97, 974, 97, 97, 97, 97, 97, 97, 196, 294, 97, 97, 97, 190, 197, 196, 294, 197, 196, 37,294, 199.

4. On the fourth ground for appeal

A. As to the violation of the Income Tax Act on the tax base and estimated taxation

기록에 의하면, 원고는 이 사건 부과처분 당시 원고의 대금업의 필요경비를 산출할 수 있는 장부 기타 증빙서류를 구비하지 못하고 있었고, 다만 이 사건 소송 이전의 피고를 상대로 한 서울고등법원 91구6438호 소송 및 이 사건 소송 과정에서 갑 제2호증의 25 내지 30, 42 내지 49, 53 내지 65 등 합계 24매의 부도어음과 갑 제2호증의 50, 51, 52의 각 대위변제증서를 원고의 대금업의 필요경비에 관한 증빙서류로서 제출하고 있는 사실, 위 각 어음은 모두 □□산업 주식회사, 소외 2(◇◇금속), 소외 3(☆☆산업), 소외 4(▷▷▷▷프레스), 소외 5(∇∇교육사) 등이 발행한 것으로서 위 각 어음의 각 발행인의 무자력을 인정할 자료를 기록상 발견할 수 없으며, 위 각 대위변제증서는 원고가 1989.에 대위변제한 사실을 증명하는 서류인 사실을 알아볼 수 있는바, 이와 같이 위 각 어음의 발행인의 무자력을 인정할 자료가 없는 이상 원고의 소외 1에 대한 위 각 어음의 액면 상당의 대여금채권 및 이자채권이 원고의 대금업의 필요경비인 대손금에 해당한다고 할 수 없으므로 위 각 어음이 필요경비에 관한 증빙서류에 해당한다고 할 수 없고, 또한 위 대위변제증서도 원고의 1987년도분 및 1988년도분 종합소득세과세표준을 결정함에 있어서의 필요경비에 관한 증빙서류가 될 수는 없다고 할 것이고, 달리 원고의 대금업의 필요경비를 산출할 수 있는 장부, 기타 증빙서류가 있음을 인정할 만한 자료를 기록상 발견할 수 없다.

On the other hand, since the total amount of income and the tax base are different in the number which serves as the basis for calculating the total amount of income and the amount of tax, the issue of which method is to be examined and determined should be determined separately depending on which one of the statutory grounds for the method of investigation is applicable, and since the two are not necessarily to be determined and determined by the same method, if it is possible to conduct an on-site investigation with respect to the total amount of income even if the tax base is determined by the method of an on-site investigation (see, e.g., Supreme Court Decisions 85Nu859, Mar. 10, 198; 89Nu5799, Jan. 25, 1990).

In the same purport, the decision of the court below that the tax base of the portion in the year 1987 and the amount of gross revenue in the year 1988 due to the plaintiff's price business is legitimate by the field investigation method, and the decision of the court below that the tax base of the case was lawful by the estimation method by applying the standard rate of income determined in accordance with the procedure under the Income Tax Act, and there is no violation of the former Act on the Tax Base and Estimated Taxation of the Income Tax Act as otherwise

B. As to the violation of the Act on the Application of Income Standard Rate, the violation of the rules of evidence, and the incomplete hearing

Examining the reasoning of the judgment below in light of the records, the court below's decision that the defendant applied 84.3% of the standard income rate for each of the above years to determine the plaintiff's income amount for each of the above years on the ground that all the plaintiff's income amount for each of the plaintiff's business in 1987 and 1988 exceeded KRW 27,00,000,000 shall be justified. The decision of the court below is justified, and there is no violation of the Act on the Application of Standard Income Rate, violation of the rules of evidence, or incomplete hearing, as otherwise alleged in the ground of appeal

5. On the fifth ground for appeal

Examining the reasoning of the judgment below in light of the records, the court below's decision that the defendant's application of tax rate in this case is legitimate is just, and there is no error in the misapprehension of legal principles under Article 70 of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 198) or violation of law as otherwise alleged in the ground of appeal. The ground of appeal on this point is not acceptable.

6. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)