조세소송에서의 증명책임 분배방안에 대한 연구

Abstract

In modern democratic society, taxes are imposed for the purpose of distribution of economic justice. Tax law is the law which distributes the public share obtained by the individuals righteously. Taxes could be opposed in profit of the individuals, however, the tax amount ruled by the lawmakers, in other words the amount fixed by law, is fare and righteous. Thus, if say that it is unjust for the individuals to bear more than the burden imposed by law because it intrudes the rights and interests of people, then it is also unfair not taking the charge of paying tax by themselves. The idea that tax transfers the individual's economic profit to general public will not only be opposed in their interests and fairness but also infringes the right and interests of nation is rather emotional, does not operate the tax law well, and eventually will leads to the state of unfair. The self-assessment system, known as democratic institution, intends to implement the fair and justice embodied in tax law throughout self-regulation. For that, a tax return should be strictly verified from the materials and data submitted and maintained by the taxpayers. Therefore, maintaining the historical data and submitting it within the tax procedure become crucial in order to realize a fair society. The various method is proposed to verify the relevant facts relating to the taxpayers' returns but the most fundamental way is to convince them that concealing of the tax data does not help to profit the taxpayers. As for one of those plan is allocating the burden of proof to the taxpayer who controls and maintains the tax data. In the past cases, the court put the burden of proof to the tax authority in principle and solved the maldistribution of the evidence as a matter of degree of proof. These kind of tendency and attitude of court may achieve its validity of the judgment itself within the process of lawsuit in order to settle the specific issues, however, it does not include the matters of securing the tax compliance issues such as governing taxpayer's behavior before the tax return, maintenance of taxation data, cooperation with the tax investigation and so on. The matter of relieving the degree of proof is something that cannot be measured objectively, so that it cannot be provided with definite guidelines concerning to the maintenance of the tax data and etc. to the taxpayers. In order to provide clear guideline, not only just easing of degree of proof is required, but also the allocation of burden of proof should be accomplished considerably. In foreign cases, it is hard to find cases where putting the burden of proof only to the tax authority like our system. To put together that allo- cating the burden of proof should be considered on the basis of the general principles of substantive law, tax law requests for the fair distribution of tax burden of the taxpayers and swift and cost-effective collection of revenue, the burden of proof should be imposed to the tax authority only when the evidence supports the fact to the increase or occurrence of the taxation, to the taxpayers when the evidence supports the discharge or decrease of the taxation, to the taxpayers who controls the data where there is the maldistribution of evidence or the taxpayer does not cooperate with the tax investigation. These allocation may promote fair declaration, maintenance and submission of the taxation data under the self- assessment system without leaning more burden on one side to another. Indeed, people, lawmakers and the Justice should have alert in mind that the government may intrude the privacy of individuals in the name of the collection of the taxation data.