A. The subject matter of a tax lawsuit

(b) the court's assistance in the absence of proof of the requirements and requirements for the estimated corporate tax;

C. Appropriateness of setting the tax base amount by mixing a on-site investigation and a preliminary investigation on a single taxable object; and

D. Scope of application under Article 49-2 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 9233, Dec. 30, 1978)

(a) Each individual disposition on each taxable unit, which is divided by the tax item and the taxable period, becomes the subject matter of a tax lawsuit;

B. The former Corporate Tax Act (amended by Act No. 3200, Dec. 28, 1979) proviso and Article 32 (3) proviso of the same Act and Article 93 (2) 1 of the Enforcement Decree of the same Act provide that the tax authority shall bear the burden of proving the requirements for the estimated taxation. Thus, if the tax authority fails to prove the requirements for the estimated taxation in a lawsuit, the court may not revoke the total amount of the estimated taxation imposed by the tax authority on the ground that it was illegal, and it does not require the tax authority to calculate the reasonable amount of tax in the case

(c) It is not allowed to set the tax base amount by mixing the on-site investigation and the estimated investigation with respect to a single taxable object under the Corporate Tax Act;

D. Where the provisions of Article 49-2 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 9233, Dec. 30, 1978) apply only to cases where the distinction between the value of supply of the building or other structure which is subject to taxation and the value of supply of the land which is subject to non-taxation is unclear, and a party trades by clearly distinguishing the value of the land and the value of the building, the tax base shall not

A. Article 19(b) of the Administrative Litigation Act (amended by Act No. 3200 of Dec. 28, 1979); Article 33(4) of the former Corporate Tax Act (amended by Act No. 3200 of Dec. 28, 1979); Article 49-2 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 9233 of Dec. 30, 1978)

Supreme Court Decision 83Nu31 Decided May 29, 1984, 85Nu62 Decided July 9, 1985, 78Nu381 Decided December 26, 1978, 83Nu80 Decided April 24, 1984

[Defendant-Appellant] Korea Food Industry Corporation and 13 others, Counsel for defendant-appellant-appellant

Head of Ansan Tax Office

Seoul High Court Decision 82Gu399 delivered on February 22, 1984

All appeals are dismissed.

The costs of appeal shall be borne by each appellant.

1. We examine the Plaintiff’s attorney’s grounds of appeal.

With respect to No. 1:

Article 59-3 subparagraph 7 of the former Corporate Tax Act (Act No. 3200, Dec. 28, 1979) provides that no special surtax shall be imposed on any income accruing from the transfer of land, etc. within the scope prescribed by the Presidential Decree for the purpose of relocating a factory which has been operated for two or more consecutive years under the conditions as prescribed by the Presidential Decree. Article 124-5 (1) 1 of the Enforcement Decree of the same Act provides that Article 59-3 subparagraph 7 of the same Act provides that no special surtax shall be imposed on any income accruing from the transfer of land, etc. used directly for the factory concerned and a building which has been transferred, shall construct a factory site above the transferred area and a factory equivalent to the machinery, equipment, etc. used directly for the factory concerned within one year from the date of the transfer (if a factory was constructed before the transfer, it shall be limited to the case where the factory was constructed within two years from the date of the construction and the factory site and the factory building before the transfer is transferred within one year from the completion date of construction. No. 3254 of the new evidence presented as follows.

With respect to the second ground:

Since individual disposition on each taxable unit, which is divided by tax item and in the taxable period, becomes the subject matter of a tax lawsuit (see Supreme Court Decision 83Nu31, May 29, 1984), it is merely an independent opinion that argues that the corporate tax, special surtax, defense tax, and disposition on imposition of value-added tax are one subject matter of a lawsuit, and that the court below's determination that the amount paid in excess of the legitimate value-added tax should not be deducted from the special surtax amount is not accepted.

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

With respect to No. 1:

According to the reasoning of the judgment below, the court below acknowledged that the plaintiff company kept books and evidential documents prescribed by the Corporate Tax Act, such as the director of the General Account, the director of the purchase sales office, the director of the production cost, the director of the general management expenses ledger, etc. for the business year of July 1-1980, which is the taxable period of this case, and submitted all of the above books and evidential documents to the defendant before the defendant's decision of the corporate tax of this case was made. In this case where the above books and evidential documents are insufficient or false, the court below determined that the disposition imposing the corporate tax of this case was unlawful because the defendant did not investigate the business income of the plaintiff company by the above books, etc. and estimated the income of the plaintiff company by the standard rate of income

Article 32 (3) proviso of the Corporate Tax Act and Article 93 (2) 1 of the Enforcement Decree of the same Act provide that when there is no taxpayer's account books and documentary evidence, which are the basis for the determination of tax base and tax amount, or when it cannot be imposed by the taxation based on the basis because the details are incomplete or false, the burden of proof is imposed on the defendant who is the tax authority. Thus, if the defendant fails to prove the requirements for the estimation taxation in the lawsuit, the court cannot revoke the whole amount of the estimation taxation due to the illegal act of the defendant, and if it is based on the on-site investigation, the court does not impose the duty to calculate the legitimate tax amount (see Supreme Court Decision 85Nu62 delivered on July 9, 1985). Further, it is not allowed to determine the tax base by mixing a separate on-site investigation and an on-site investigation on the object of taxation under the Corporate Tax Act (see Supreme Court Decision 78Nu381 delivered on December 26, 1978).

With respect to the second ground:

Article 49-2 of the former Enforcement Decree of the Value-Added Tax Act (Presidential Decree No. 9233, Dec. 30, 1978) applies only to cases where the distinction between the value of the building and the value of the non-taxable land is unclear (see Supreme Court Decision 83Nu80, Apr. 24, 1984). Thus, in cases where the party concerned trades clearly separately between the value of the building and the price of the building, the tax base should be calculated pursuant to Article 13 of the Value-Added Tax Act, not to the above Enforcement Decree. Under the facts duly established by the court below, the court below determined that the transfer price of the land and the building in this case was 51,90,000 won, which is the appraised price of the building in this case, and thus, the court below's further determination that the transfer price of the building in this case was unconstitutional by the defendant under Article 13 (1) of the Value-Added Tax Act, and thus, the above tax base should be calculated based on the total value of the building in this case.

With respect to the third point:

The court below found that the plaintiff company's shareholders were 13 and the total number of outstanding shares was 53,000 shares for the above business year. Among them, the plaintiff 3, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 were 23,90 shares for the deceased non-party who is the deceased's decedent, and the plaintiff 2, 1750 shares for 1,750 shares and 30 shares for the plaintiff 4, 49.5 percent of the total number of outstanding shares for the above business year. Thus, the court below held that the above decision of the court below was justified in the misapprehension of the legal principles as to the plaintiff company's oligopolistic shareholders, since the ratio of the total amount of outstanding shares for the plaintiff company's oligopolistic shareholders cannot be deemed to fall under the oligopolistic shareholders under Article 39 subparagraph 2 of the Framework Act on National Taxes, and thus, the above decision of the court below was justified in its determination based on the records.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Jong-soo (Presiding Justice)