Cho High Court Decision 2010Du1175 (Law No. 12, 2011)

The mandatory rental period shall be calculated on the basis of the lease period after registration of the rental business operator.

Even if a rental house was leased before being registered as a rental business operator, such period shall not be deemed to be included in the mandatory rental period of five years, one of the requirements for exclusion from summing-up, and thus, it shall not be deemed to constitute a rental house since the lease period of a house after registration as a rental business operator

2011Guhap21577 Action demanding revocation of disposition of comprehensive real estate holding tax, etc.

XX Investment Company

The Director of Gangnam District Office

September 23, 2011

October 19, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of comprehensive real estate holding tax on January 8, 2010, 33,981,310 won for the year 2005, special rural development tax on 6,796,260 won, comprehensive real estate holding tax on 306,201,140 won for the year 2006, and 61,240,230 won for special rural development tax on 61,240,230 shall be revoked.

1. Details of the disposition;

A. On December 21, 2001, the Plaintiff, a specialized company for real estate restructuring established under the Real Estate Investment Company Act, purchased the instant house from the Busan East-gu, Busan Metropolitan City, 15-5 O apartment 78, Busan, 00 households of 0-0 △△ apartment 100, and the sum of 1,114 households of 121-2 △△ apartment 936, Kimhae-si, 121-2, 114 (hereinafter referred to as the “instant house”). On the same day, the Plaintiff purchased the instant house from the relevant company for real estate restructuring (hereinafter referred to as “ XX aviation”) and leased the instant house to the Pair for five years.

B. Thereafter, on January 8, 2002, the Plaintiff registered a rental business operator pursuant to Article 6 of the former Rental Housing Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter referred to as the "former Rental Housing Act") with the head of Gangnam-gu Seoul Metropolitan Government Office, and continuously leased the instant house and applied for exclusion of the sum of the instant house from the total real estate tax (hereinafter referred to as "the aggregate of the instant houses") by deeming that it constitutes the tax base of the instant comprehensive real estate tax (hereinafter referred to as "the aggregate of the instant houses") upon reporting the comprehensive real estate holding tax for 2005 and 206.

C. However, on January 3, 2007, immediately before five years have passed since the Plaintiff registered as a rental business operator, the Defendant deemed that the instant housing failed to meet the requirements for five-year rental period from among the requirements for exclusion of summing-up under Article 3(1)3 of the former Enforcement Decree of the Gross Real Estate Tax Act. On January 8, 2010, the Plaintiff issued a revised and notified the Plaintiff on January 8, 2010 that the instant housing did not meet the requirements for five-year rental period from among the requirements for exclusion of summing-up under Article 3(1)3 of the former Enforcement Decree of the Gross Real Estate Tax Act (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an objection against the Defendant on January 20, 2010, but the Defendant, on February 9, 2010, rejected the request for a trial again to the Tax Tribunal on March 26, 2010, but the Tax Tribunal dismissed the request on April 12, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 4 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

When interpreting relevant Acts and subordinate statutes, such as the former Gross Real Estate Tax Act, purposely, one of the requirements for exclusion of aggregate rental housing, the base date of five-year period of compulsory rental stipulated in Article 3(1)3 (b) of the Enforcement Decree of the former Gross Real Estate Tax Act shall not be deemed the date of commencement of lease, and it shall not be deemed the date of registration of rental business operator formally. The Plaintiff sold the instant housing on January 3, 2007 after five years have elapsed since it sold the instant housing on January 2, 2007.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) In light of the principle of no taxation without law, or the requirement for tax exemption or exemption, the interpretation of tax laws shall be interpreted as the text of the law, barring any special circumstances. It is not allowed to expand or analogically interpret without reasonable grounds, and in particular, it accords with the principle of fair taxation to strictly interpret the provisions that can be seen as clearly preferential provisions among the requirements for reduction or exemption (see, e.g., Supreme Court Decision 2003Du7392, May 28, 2004).

(2) In light of the above legal principles, even if a rental house was leased before being registered as a rental business operator pursuant to Article 6 of the former Rental Housing Act, its lease period shall not be deemed to be included in the mandatory lease period of five years under Article 3 (1) 3 (b) of the former Enforcement Decree of the Gross Real Estate Tax Act. Thus, even if the Plaintiff leased the house to XX air for five years from January 2, 2002 until January 3, 2007, it shall be deemed that the lease period of the house of this case was more than five years and it is clear that the lease period of this case did not meet the above five-year rental period under the provisions of Article 5 of the former Rental Housing Act, and it shall not be deemed that the lease period of this case was more than 0 years under the provisions of Article 7 (2) 1 of the former Enforcement Decree of the Rental Housing Act, and it shall not be deemed that the lease period of this case was more than 0 years under the provisions of Article 7 (2) 1 of the former Rental Housing Act.

B) On the other hand, a person who intends to lease a house of more than a certain number prescribed by the Presidential Decree may file an application for registration of a rental business operator with the head of a Si/Gun/Gu, and if a rental business operator is registered as a rental business operator, a rental business operator shall be subject to various restrictions under the former Rental Housing Act, such as restriction on the sale of a rental house, reporting on the terms and conditions of lease, and management of a rental house, instead of being granted a comprehensive real estate tax, and if he violates various obligatory provisions under the former Rental Housing Act, the registration of a rental business operator shall be subject to criminal punishment (Article 6, 11, 12, 16, 17, 22, and 23 of the former Rental Housing Act), and if he/she files for registration as a rental business operator under the former Rental Housing Act, he/she shall not be deemed as a simple need for registration of a rental business operator, as argued by the Plaintiff, including the mandatory lease period for five years without registration of a rental business operator, but rather, it shall be interpreted that he/she may intentionally acquire various benefits under the former Rental Housing Act by opening it.

C) Meanwhile, the Plaintiff asked the tax authority prior to the transfer of the instant house to question the starting date of the instant house and the starting date of the lease period by disclosing the actual lease commencement date and the registration date of the rental business operator, and the tax authority asked to the effect that the lease should be made until January 1, 2007, which was five years from that date, counting from that date. However, the Plaintiff’s specific questioning to the purport that the lease should be made by January 1, 2007, which was five years from that date. However, the Plaintiff’s specific questioning to the purport that the lease should be made by starting the lease from January 2, 2002 to the tax base date ( June 1, 2006), and that the lease should be made only after June 1, 2006, which was five years from that date, and as such, it cannot be viewed that it was sufficient to determine the lease period by the tax authority’s specific questioning as to whether the lease period should be included in the registration period or the content of the lease business as a unit before that date.

3. Conclusion

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