A. Whether Article 18(3) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 8607, Jun. 26, 197) is valid

B. The burden of proving the legality of the estimated taxation

C. The court's assistance in the absence of proof of legality of the estimated taxation.

A. Article 18(3) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 8607, Jun. 29, 197) limits the scope of others under Article 7(3) of the Value-Added Tax Act, which is the mother corporation, and reduces the scope of non-taxable objects and expands the scope of taxable objects, but further expands the scope of taxable objects under the Enforcement Decree of the Value-Added Tax Act does not comply with Article 7(3) of the same Act. In addition, the provision that limits the scope of non-taxable services under Article 18(3) of the same Act, which delegates the scope of non-taxable services to expand the scope of others under Article 18(3) of the Enforcement Decree, cannot be found at all in the Value-Added Tax Act.

(b) In the case of estimated taxation, the method and content of the estimation should be reasonable and reasonable to reflect the actual value close to the truth, and in the case of a dispute over the legality of such estimated taxation, the burden of proving the reasonableness and feasibility shall be borne by the tax authority.

C. In the event that the tax authority fails to prove the legality of the estimated taxation, the court cannot revoke the entire amount of the estimated taxation imposed by the tax authority on the ground that the taxation authority was illegal, and the court actively finds a method of reasonable and reasonable estimation and does not impose a duty on the taxpayer to calculate the reasonable amount of tax to be imposed by the tax authority.

(a) Articles 7(1) and 7(3) of the Value-Added Tax Act and Article 18(3)(b) of the Enforcement Decree of the said Act; Article 21(2)1 of the Value-Added Tax Act; Article 69 of the Enforcement Decree of the said Act;

A. Supreme Court en banc Decision 86Nu655 Decided September 22, 1987; 86Nu694 Decided October 26, 1987; 87Nu967 Decided September 9, 1986; 87Nu235 Decided August 18, 1987

Plaintiff

the director of the tax office

Seoul High Court Decision 85Gu976 delivered on February 4, 1987

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below presumed that Article 18 (3) of the Enforcement Decree of the Value-Added Tax Act provides that "market price" under Article 50 (1) 3 of the Enforcement Decree of the Value-Added Tax Act shall be the price formed in normal transactions with unrelated parties with the non-party company as representative director of non-party subsidiary Construction Co., Ltd., who is a related party with the non-party company, without compensation from March 15, 1983 to June 30, 1984, which is unreasonably low price and without compensation from the next day to September 30, 1984, the rent of this case shall be calculated by multiplying the above 9-year rent of this case by the total amount of 9-year rent of this case. Thus, if it is impossible to verify the price formed in normal transactions with unrelated parties under Article 50 (1) 1 of the Enforcement Decree of the Value-Added Tax Act, the market price of this case shall be calculated by dividing the above 9-year rent of this case by the non-party 1's statutory rent of this case.

2. First of all, with respect to the part on which the Plaintiff leased the site of this case from March 15, 1983 to June 30, 1984, the provision of services shall be made either to provide services or to allow a person to use goods, facilities or rights on all contractual or legal grounds." Article 7 (1) of the Value-Added Tax Act provides that "the supply of services without compensation or the provision of services to a person under an employment relationship shall not be deemed the supply of services." On the other hand, Article 18 (3) of the Enforcement Decree newly established by Presidential Decree No. 8607 of Jun. 29, 197 provides that "the provision of services shall not be deemed the provision of services." Article 18 (2) of the Value-Added Tax Act provides that "the provision of services shall not be deemed the provision of services." Article 7 (3) of the Enforcement Decree of the same Act provides that "the person who has a special relationship with another person shall not be included in the provision of Article 97 (3) of the Value-Added Tax Act.

Therefore, as long as Article 18 (3) of the Enforcement Decree of the Tax Act is null and void, the defendant's disposition of this case on the above gratuitous loan shall be an unlawful disposition conducted without any legal basis. Thus, the court below's decision that the above provision is valid is erroneous or the conclusion that the disposition of this case

In the end, we cannot accept the issue of this part without further examining it.

3. Next, in light of the records, the plaintiff's ground of appeal as to the portion of the site of this case leased at an unreasonably low price from July 1, 1984 to September 30, 1984, the court below's determination of facts and determination on that portion is proper and correct, and there is no violation of the rules of evidence, such as theory of lawsuit, incomplete deliberation, or misunderstanding of legal principles. Meanwhile, in the case of estimated taxation, the method and contents of estimation should be reasonable and reasonable to reflect the actual amount close to the truth. In the case of dispute over the legitimacy of estimated taxation, the burden of proof as to its rationality and validity must be borne by the defendant who is the tax authority. Thus, if the defendant fails to prove the reasonable and reasonable method and contents of estimation in the lawsuit (except in the case of presenting separate and reasonable method of calculation, it cannot be revoked in its entirety, and it is not unlawful in the court's determination of facts as to the above part of this case's imposition of value-added tax on the plaintiff.

The Supreme Court precedents that require discussion can not be an appropriate precedent in this case, unlike the case. There is no argument on the above part.

4. 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-soo (Presiding Justice)