Calculation of the amount of property tax deducted from the comprehensive real estate holding tax on house Article 4-2 of the Comprehensive Real Estate Holding Tax Act.

2. The costs of lawsuit shall be borne by the Plaintiff.

A. On November 17, 2016, the Defendant issued a disposition imposing KRW 2,38 of the total real estate tax for the year 2016 and KRW 477,505,350 of the special rural development tax on 71 housing held as of June 1, 2016, 738 of the aggregate aggregate land, 223 of the separate aggregate land (hereinafter referred to as “house, etc.”) (hereinafter referred to as “instant disposition”).

B. The Defendant calculated the amount of the property tax to be deducted from the amount of the comprehensive real estate holding tax in accordance with the formula provided in Articles 4-2(1) and 5-3(1) and (2) of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (hereinafter “the pertinent provision”) as KRW 885,428,052 (hereinafter “the pertinent provision”), and “the formula provided in the key provisions”.

C. On January 4, 2017, the Plaintiff filed an appeal with the Tax Tribunal on the grounds that the assessment of the amount of the property tax deducted was erroneous. However, the Tax Tribunal dismissed the appeal on March 31, 2017.

Facts that there is no dispute over recognition, Gap evidence 2, 5, Eul evidence 1, the purport of the whole pleadings, and the purport of the whole pleadings.

2. The plaintiff's assertion

The issue of double taxation is that the comprehensive real estate holding tax and property tax are both imposed on the same real estate property. The Comprehensive Real Estate Holding Tax Act has a provision that deducts the already paid property tax in order to coordinate the double taxation issue. The main issue of this case is the provision for calculating the amount of the property tax so deducted. If the text of the provision is interpreted, the amount of the property tax imposed on the portion which is subject to the comprehensive real estate holding tax should not be deducted from the amount of the tax calculated by multiplying the amount of the property tax imposed

This interpretation goes beyond the delegation scope of the Comprehensive Real Estate Tax Act, which intends to deduct the amount of property tax imposed overlapping with the comprehensive real estate holding tax, and thus violates the principle of double taxation prohibition and the principle of proportionality, as well as infringes on the taxpayer's property rights. Therefore, the part of the disposition in this case which exceeds the legal and legitimate imposition should be revoked.

3. Relevant statutes;

It is as shown in the attached Form.

4. Whether the instant disposition is lawful

(a) Progression, etc. of the relevant regulations;

1) Background and purpose of establishing the Comprehensive Real Estate Holding Tax Act

Before the introduction of the comprehensive real estate holding tax on January 2005, the Korean tax law has provided property and aggregate land tax within the local tax system as real estate holding tax.The aggregate land tax has been implemented since 1990 for the purpose of stabilizing the land price and expanding the base of land ownership by suppressing the speculation of real estate and excessive holding of land.

Since the price of real estate which has fallen due to the influence of the foreign exchange crisis in 1997 was out of the management system of the International Monetary Fund (IMF) in the early 2000s and the rise in the center of apartment houses in the Seoul metropolitan area, the ownership taxation of real estate has a limit to the suppression of speculation, and comprehensive real estate holding tax was introduced by enacting the Comprehensive Real Estate Holding Tax Act (Act No. 7328 of Jan. 5, 2005).

The comprehensive real estate holding tax law aims to achieve balanced development of the disaster prevention justice and sound development of the national economy by imposing comprehensive real estate holding tax, which is a national tax, at a rate higher than that of local taxes, by promoting balanced taxation burden on real estate holding and stabilizing the prices of real estate.

2) Provisions on the method of calculating the amount of property tax deducted from the comprehensive real estate holding tax;

A) Necessity for the coordination of double taxation

As of June 1 of each year, which is the tax base date under the Comprehensive Real Estate Tax Act, the comprehensive real estate holding tax is a kind of tax imposed by recognizing the ability to pay taxes to the owner of real estate, such as housing and land, the real estate holding tax base of which is the value of the relevant real estate, and is in fact on the extension line of liability to pay property tax on land and housing. Accordingly, the amount below the tax base amount is imposed only on the property tax, but also on the amount exceeding the tax base amount is imposed at a higher rate than property tax, and the comprehensive real estate holding tax is imposed at the same time on the portion subject to double taxation of property tax and comprehensive real estate holding tax.

The Comprehensive Real Estate Tax Act introduced the system of deduction of property tax in order to coordinate such double taxation issues, and the relevant provisions were changed as follows:

B) The process of changing the system of deduction of property tax under the Gross Real Estate Tax Act

(1) The Gross Real Estate Tax Act enacted by Act No. 7328 of January 5, 2005

� 주택에 대한 종합부동산세는 과세표준에 다음의 세율을 적용하여 계산한 금액을 그 세액으로 하되, 납세의무자별로 주택분 재산세로 부과된 세액의 합계액 중 199만 원을 초과하는 금액은 주택분 종합부동산세액에서 이를 공제한다(제9조).

�� 종합합산과세대상인 토지에 대한 종합부동산세의 세액은 과세표준에 다음의 세율을 적용하여 계산한 금액으로 하되, 납세의무자별로 당해 과세대상 토지에 대하여 토지분 재산세로 부과된 세액의 합계액 중 125만 원을 초과하는 금액은 토지분 종합합산세액에서 이를 공제한다(제14조 제1항).

�� 별도합산과세대상인 토지에 대한 종합부동산세의 세액은 과세표준에 다음의 세율을 적용하여 계산한 금액으로 하되, 납세의무자별로 당해 과세대상 토지에 대하여 토지분 재산세로 부과된 세액의 합계액 중에서 680만 원을 초과하는 금액은 토지분 별도합산세액에서 이를 공제한다(제14조 제2항).

(2) On December 31, 2005, the Act on Comprehensive Real Estate and the Enforcement Decree of the Gross Real Estate Tax Act (amended by Act No. 7836, Dec. 31, 2005) amended by Presidential Decree No. 19253, to clarify the method of calculating the amount of property tax calculated by deducting the amount of property tax imposed as property tax from the amount of comprehensive real estate holding tax.

The amount of tax imposed as property tax on the relevant taxable housing, etc. with respect to the amount exceeding the standard amount of taxation on the relevant taxable house, etc. subject to comprehensive real estate holding tax (Articles 9(3) and 14(3) and (6) of the Comprehensive Real Estate Holding Tax Act) shall be deducted from the amount of comprehensive real estate holding tax.

Total amount of tax imposed as property tax, such as housing 】

(3) Enforcement Decree of the Gross Real Estate Tax Act amended by Presidential Decree No. 21293, Feb. 4, 2009

Total amount of tax imposed as property tax, such as housing 】

(4) Enforcement Decree of the Gross Real Estate Tax Act (the instant provision) amended by Presidential Decree No. 26670 on November 30, 2015 (the instant provision)

The tax authority interpreted the "amount equivalent to property tax calculated according to the standard tax rate for property tax on the tax base, such as housing," which is the molecule part of the calculation method of property tax under the above Enforcement Decree of 2009 as "amount equivalent to property tax" under Article 5 (2) of the former Enforcement Rule of the Gross Real Estate Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 102 on September 23, 2009) [Attached Form 3] x fair market price ratio for comprehensive real estate holding tax x fair market price ratio for comprehensive real estate holding tax 】 property tax rate.

Supreme Court Decision 2012Du7073 Decided June 24, 2015 ruled that the amount of property tax deducted by the amended Enforcement Decree of the 2009 above should be calculated according to the formula of "tax base excess amount 】 (the smaller of the fair market price ratio of property tax and comprehensive real estate holding tax) 】 property rate 】 property rate.

Since then, the provision on the calculation of property tax to be deducted from the amount of comprehensive real estate holding tax was amended as the main provision of this case, and the main provision of this case provides for the instant formula.

B. Whether the key issue provision of this case is illegal and unconstitutional

1) Whether the instant key provisions are invalid beyond the bounds of delegated legislation

A) The Gross Real Estate Tax Act delegates the method of calculating the amount of property tax to the Enforcement Decree by prescribing matters necessary for the deduction, etc. of the amount of property tax imposed as property tax on housing, etc. in calculating the amount of comprehensive real estate holding tax. It may be problematic whether the scope of the amount of property tax deducted in relation to the scope of delegation itself exceeds the limit of delegation.

The Gross Real Estate Tax Act does not stipulate that the amount of comprehensive real estate holding tax should be deducted from the total amount of the property tax imposed on the tax base, and the interpretation that the scope of the deduction includes necessary matters concerning the deduction, etc. of the amount of the tax imposed on the property tax delegated by the Presidential Decree is consistent with the objective interpretation. In light of the fact that it cannot be seen as contrary to the principle of prohibition of comprehensive delegation, it shall be deemed that the specific scope of deduction has been delegated to the Presidential Decree.

B) The key issue provision of this case is that the concept of comprehensive real estate holding tax exceeds the standard amount of taxation, such as house, etc., due to the division exceeding the standard amount of taxation of comprehensive real estate holding tax x that of comprehensive real estate holding tax x that of excessive deduction due to the maintenance of the amount of deduction at the existing level in accordance with the interpretation of the Supreme Court as seen above, notwithstanding the fact that the tax base of comprehensive real estate holding tax has been reduced, it is resolved and it is prepared to eliminate the controversy over the scope of the amount of property deduction when calculating the

In light of the purport of the pertinent provision and the progress of the amendment, the key provision of the instant case does not seem to deviate from the scope delegated by the Comprehensive Real Estate Holding Tax Act.

2) Whether the prohibition of double taxation and the principle of proportionality are violated

A) Although the objects of taxation of the comprehensive real estate holding tax and the property tax are identical to those of the real estate, Article 4 of the Act on the Adjustment, etc. of National Taxes and Local Taxes provides that "the State and local governments shall not enact any tax-related Act of which objects of taxation overlap except those provided for in this Act." Thus, even if objects of taxation are identical, it cannot be deemed that the imposition of the comprehensive real estate holding tax and the property tax at the same time goes against the principle of double taxation without any conditions.

In this regard, the comprehensive real estate holding tax has the nature of the regulatory tax in order to achieve the policy objective pursuing the regulatory tax. If the amount of the comprehensive real estate holding tax is deducted when calculating the total amount of the property tax, the method of heavy taxation on the large real estate holding company is weak to achieve the policy objective of the comprehensive real estate holding tax, and it is difficult to achieve the social objective of the comprehensive real estate holding tax law, which is to achieve the equity in taxation on the possession of real estate, and to achieve the social objective of the comprehensive real estate holding tax.

Since comprehensive real estate holding tax is imposed only on property exceeding a certain amount, there is no room for double taxation because property tax is imposed only if it is below this standard amount. In principle, if the amount of property tax is deducted in excess of this standard, it is nothing more than a partial overlap. As such, whether to place a adjustment provision to eliminate or relax the imposition of taxes on the same taxable object and how to adjust it should ultimately be based on the actual state of national finance, social economy, national income, people's lives, etc., and ultimately, it should be put to policy and technical judgment based on accurate data.

B) The key issue provision of this case is the amendment to clarify the interpretation of the scope of the property tax to be deducted in calculating the amount of comprehensive real estate holding tax, and the calculation formula of the deduction is the instant formula. As long as a certain constitutional order that deducts the amount of the property tax already paid cannot be deemed to have been granted to the legislative person, it cannot be said that the provision is unconstitutional even if the entire amount of the property tax is not deducted.

C) Under the principle of no taxation without law, or under the principle of no taxation without law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring special circumstances, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret that the provision of tax laws and regulations is clearly preferential (see, e.g., Supreme Court Decision 97Nu20090, Mar. 27, 1998).

The key issue provision of this case is an amended provision to avoid controversy over the amount of the property tax to be deducted as seen earlier. Therefore, the key issue provision of this case should be interpreted as it is, and in order to reduce the double taxation part, it cannot be interpreted as "(public notice price - the amount of tax base x the fair market price ratio x the fair market price ratio x the property tax rate x the property tax rate x the property tax rate."

D) Therefore, the instant issues cannot be said to be a provision that violates the principle of double taxation prohibition or the principle of proportionality.

3) Whether it constitutes a provision that infringes on property rights

The calculation formula for the deduction of the property tax for double taxation since the first introduction into the Enforcement Decree of the Comprehensive Real Estate Tax Act (amended by Presidential Decree No. 19253, Dec. 31, 2005) as amended by Presidential Decree No. 19253 of December 31, 2005, shall be calculated by multiplying the ratio to the total amount of the property tax imposed on housing, etc. by the ratio of the property tax to the total amount of the property tax imposed on housing, i.e., the property tax amount to be imposed on the portion on which the Comprehensive Real Estate Tax is imposed twice among the property tax amount to be imposed on the total amount of the property tax imposed on housing, etc.

In addition, the burden of the property tax and the comprehensive real estate tax to be borne by the taxpayer has been reduced due to the introduction of the "fair market price ratio" system. In addition, in light of the legislative intent of the Comprehensive Real Estate Tax Act and the purpose of the amendment and the progress of the amendment of the regulations on the issues of this case, it is difficult to view that even if the amount of the property tax to be deducted is reduced if it is calculated according to the instant formula, it infringes on the taxpayer's property right by imposing taxes exceeding the substantial capacity of the taxpayer for the reason that it is difficult to deem that

C. Sub-committee

As above, the disposition of this case, which was imposed by calculating the amount of property tax deducted according to the instant formula, is just, and the plaintiff's assertion on a different premise is without merit.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.