비거주자ㆍ외국법인의 경정거부처분 취소소송에서의 입증책임에 관한 연구

The tax reassessment claim system has been revised several times, extending the claim period and expanding the number of claimants to include nonresidents and foreign corporations. As a result, there has been an increase in the number of lawsuits filed by non-residents and foreign corporations to cancel the denial of tax reassessment claim of refund. However, the problem is that the attitude of precedents (such as the Supreme Court's ruling of March 9, 1976, 74 Nu 7) that the tax administration bears the burden of proof regarding tax requisition against tax assessment is also applicable to nonresidents and foreign corporations. In the case of non-residents and foreign corporations, the burden of proof needs to be approached differently as it is more difficult for the tax authorities to obtain tax data. There are two ways to adjust the burden of proof in nonresidents or foreign corporations’s denial of tax reassessment claim of refund ：：(1) through court interpretation, and (2) through legislation. Recent trends in lower court cases, particularly in the case of denial of tax reassessment claim of refund judgments handed down in 2023, often confirm that lower court judgments have relaxed the burden of proof by stating that overpayment is effectively presumed by the rule of thumb. In conclusion, it can be concluded that the taxpayer has the burden of proof in the case of a claim for correction of a taxpayer's return because the taxable data is within the taxpayer's control. However, it is difficult to know the clear criteria for when the rule of thumb is applied and excluded. In addition, the Supreme Court's 2015 Du 950 and the Seoul Administrative Court's 2021 Guhap 61598 have conflicting conclusions on the burden of proof by applying the rule of thumb, even though the facts are very similar. This conflicting ruling significantly hinders the predictability of the burden of proof for taxpayers. Therefore, adjusting the burden of proof by court interpretation has its limitations. There are two ways to allocate the burden of proof through legislation：1) by establishing new rules for allocating the burden of proof regarding nonresidents and foreign corporations, and 2) by linking the burden of proof to the obligation to cooperate as a taxpayer of a nonresident or foreign corporation. Regarding 1), in light of the legislative precedents in the United States and the United Kingdom, it is not impossible to shift the burden of proof to the taxpayer, but in consideration of equity, it is necessary to shift the burden of proof only in cases where the tax administration can only rely on the cooperation of non-residents and foreign corporations to obtain tax data. 2) Measures to link burden of proof to the nonresidents and foreign corporations’ obligation to cooperate as a taxpayer include (a) imposing a penalty for violating the obligation to submit documents, (b) not using the documents as taxable data if the obligation to submit documents is not fulfilled by a certain deadline, and (c) limiting the methods of proof for late submission. (a) and (b) are already implemented in Korea, but in order to secure effectiveness, the upper limit of the penalty needs to be gradually increased in the case of (a). In the case of (b), the contents of the International Tax Adjustment Act should be stipulated in the National Tax Act to raise awareness among taxpayers of the need to submit tax data on time. Lastly, (c) is not provided for in the Korean Framework Act on National Taxes, but it is worth considering introducing by limiting its application to nonresidents and foreign corporations that have not fulfilled their obligation to submit documents by a certain deadline. If Article 116 of the Japanese General Taxation Law is adopted in the Korean Framework Act on National Taxes, it is expected that the likelihood of taxpayers submitting evidence late will be significantly lower. It is worthy of consideration to introduce it into the Korean Framework on National Taxes. Based on the above, it is hoped that the burden of proof for nonresidents and foreign Corporations will be allocated rationally in the case of denial of tax reassessment claim of refund.