일본과 독일에서 조세소송의 증명책임 제도가 우리나라에 주는 시사점

This study examines the burden of proof and its shifting in tax litigation by comparing the systems of Korea, Japan, and Germany. All three countries, influenced by the principle of legality in taxation, generally place the burden of proof for the factual grounds of taxation on the tax authorities, while under the influence of the theory of legal element classification, taxpayers are required to prove any extinguishing or exempting circumstances. However, Japan and Germany apply this rule flexibly, taking into account evidentiary difficulties and the location of evidence. In Korea, in lawsuits challenging the rejection of correction (refund) claims, once the tax authority proves that the taxpayer’s filing or claim is unlawful, the taxpayer must then substantiate the legitimacy of the correction request. In the United States, the taxpayer generally bears the burden of proof, but it may shift to the tax authority when the taxpayer faithfully cooperates. Japan and Germany also allow, in effect, for the shifting of the burden of proof in cases of evidentiary obstruction or imbalance. Therefore, in Korea, when taxpayers act in bad faith or abuse correction claims, it is reasonable to shift or mitigate the taxpayer’s burden of proof based on the principle of good faith. Ultimately, legislative clarification of the allocation and shifting of the burden of proof in tax litigation is necessary to ensure legal certainty and procedural fairness.