Seoul High Court 2012Nu5031 (Seoul High Court 2012.09.20)

Since the property tax subject to deduction exceeds the amount of the attached tax base, it shall be calculated by the formula applying the smaller ratio between the property tax and the fair market price ratio of the attached tax.

The purpose of the revision of the Act on Real Estate Tax is not to reduce or change the scope of the amount of the deducted property tax. Since the property tax deduction is more than the standard amount of the attached tax, it shall be calculated by the formula applied by the smaller of the ratio of the property tax and the fair market value of the attached tax.

Revocation such as the imposition of comprehensive real estate holding tax, etc.

It is as shown in the attached list of plaintiffs.

1. The director of the tax office of Seodaemun;

4. The superintendent of the tax office of the Seocho District Tax Office; 5. The superintendent of the tax office of the Seocho Tax Office;

Seoul High Court Decision 2012Nu5031 Decided September 20, 2012

June 23, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

(1) Articles 9(3) and 14(3) and (16) of the former Gross Real Estate Tax Act (amended by Act No. 10221, Mar. 31, 2010; hereinafter the same shall apply) provide that the tax amount imposed as property tax on housing, etc. subject to the relevant taxation shall be deducted from the amount of comprehensive real estate tax on housing, etc., the amount of comprehensive real estate tax on land, and the amount of special aggregate tax on land (hereinafter referred to as “housing, etc.”) separately from the amount of property tax on housing, etc. subject to the relevant taxation. (B) citing the reasoning of the judgment of the first instance court, the lower court, citing the reasoning of the judgment of the lower court, found the relevant Plaintiffs to be subject to imposition of comprehensive real estate tax and special tax on housing, etc. for the period of 209 years, etc., and 5 through 9 of the same list x 200 of the former Enforcement Rule of the Gross Real Estate Tax Act (amended by Ordinance of the Ministry of Strategy and Finance) 20.

Furthermore, the court below stated that (a) Articles 4-2, 5-3 (1) and (2) of the former Enforcement Decree of the Gross Real Estate Tax Act (amended by Presidential Decree No. 22813, Mar. 31, 201; hereinafter the same shall apply) stipulate that the amount of property tax imposed as property tax on houses, etc. which is deducted from the amount of comprehensive real estate tax 】 total amount of property tax imposed as property tax on houses, etc. 】 the amount calculated according to the formula of "amount equivalent to property tax calculated as property tax on houses, etc." (hereinafter referred to as "the formula of Enforcement Decree of this case") 】 the amount of property tax to be deducted if the amount exceeds the amount of "amount of property tax on houses, etc." calculated as property tax on the basis that the amount of comprehensive real estate tax is not the standard for calculating the amount of property tax 】 (the officially announced market price of comprehensive real estate tax 】 (the amount of property tax to be deducted) calculated as property tax on the portion which is clearly the standard for calculating the amount of property tax on comprehensive real estate tax 】.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

A. The Local Tax Act amended by Act No. 7332, Jan. 5, 2005, in order to realize the tax base, provides that the property tax base shall be based on the publicly notified price under the Public Notice of Values and Appraisal of Real Estate Act, but the property tax base shall be calculated according to the annual application rate of the publicly notified price in order to ease a rapid tax burden following the introduction of a new system. The Gross Real Estate Tax Act enacted by Act No. 7328, Jan. 5, 2005, puts the amount obtained by deducting a certain amount of tax base from such aggregate amount of property tax base as the

However, since the application rate of the above Local Tax Act has been determined as a phased increase each year and it was difficult to flexibly adjust the fair level of tax burden, so the Act was amended by Act No. 7843, Dec. 31, 2005; and the Comprehensive Real Estate Tax Act amended by Act No. 9273, Dec. 26, 2008, introduced a fair market rate system applicable to property tax and comprehensive real estate holding tax, respectively, to determine the rate of inclusion in a certain tax base within a certain scope, taking into account the pertinent real estate market situation, financial conditions, etc. However, Article 5 of the Addenda of the above Local Tax Act provides for the fair market rate of 10 percent of the annual applicable rate of property tax and comprehensive real estate holding tax (wholly amended by Presidential Decree No. 2010, Feb. 6, 2009; Presidential Decree No. 201358, Dec. 28, 2009).

On the other hand, the purpose of the comprehensive real estate holding tax introduced through the reorganization of the real estate holding tax system on January 5, 2005 is to enhance equity in tax burden on real estate holding and to stabilize the price of real estate by first imposing property tax, which is a local tax, at a low rate on a person holding property subject to taxation, and again imposing property tax at a high rate on a person holding real estate in excess of a certain standard amount of taxation, which is a national tax. As such, since the property tax and the comprehensive real estate holding tax are taxes based on the same taxable capacity, which is the possession of property subject to taxation, the Comprehensive Real Estate Holding Tax Act enacted by Act No. 7328 on January 5, 2005 (amended by Presidential Decree No. 21293 of Feb. 4, 2009), which is to deduct the amount of property tax imposed from the calculated amount of comprehensive real estate holding tax. Accordingly, Articles 4-2, 5-3 (1) and (2) of the former Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (amended by Presidential Decree No. hereinafter referred to as the standard tax rate of property tax calculated in excess the amount of property tax.

After that, on February 4, 2009, Article 4-2, Article 5-3 (1) and (2) of the Enforcement Decree of the former Enforcement Decree of the Gross Real Estate Tax Act was amended by Presidential Decree No. 21293, the method of calculating the amount of property tax to be deducted shall be determined by the formula of this case, namely, the total amount of property tax imposed as property tax on housing, etc. 】 The amount equivalent to the property tax calculated as the standard tax rate of property tax on housing, etc. calculated by adding up the numbers of houses, etc. calculated as the standard tax rate of property tax on the tax base of housing, etc.

In light of the developments and purport of the amendment of the provisions related to the Local Tax Act, the Gross Real Estate Tax Act and the Enforcement Decree of the Gross Real Estate Tax Act, even if the portion exceeding the standard amount of taxation, such as a house, stated in the molecular in the previous formula in the Enforcement Decree, was changed to the “tax base for the house, etc.” as stated in the molecular in the instant formula in the Enforcement Decree, there is no change in the basic purport of deducting the amount of property tax imposed overlapping with the comprehensive real estate tax for the portion exceeding the standard amount of taxation. Therefore, even if the method of calculating the amount of property tax to be deducted was changed to the instant formula in the previous Enforcement Decree, such

B. Furthermore, we examine the method of calculating the property tax to be deducted in accordance with the instant Enforcement Decree.

The amount of property tax on the portion exceeding the standard amount of taxation of the comprehensive real estate holding tax is calculated based on the formula of "(public notice price - the standard amount of taxation) 】 the amount of comprehensive real estate holding tax on the same portion is calculated based on the formula of "fair market price ratio of the comprehensive real estate holding tax" x "fair market price ratio of the comprehensive real estate holding tax". However, since this two amounts refer to the portion on which the property tax and the comprehensive real estate holding tax are imposed respectively for the portion of "officially announced price - the standard amount of taxation," the overlapping portion is - i.e., the amount of taxation - the fair market price ratio of the comprehensive real estate holding tax 】 (public notice price - the standard amount of taxation - the fair market price ratio of the comprehensive real estate holding tax x the portion on which the property tax is imposed concurrently. In addition, this part is not necessary to consider when calculating the amount of property tax deducted on the ground that the comprehensive real estate holding tax is imposed.

In full view of these points, the amount of property tax to be deducted according to the formula of the Enforcement Decree of this case 】 (Public notice price - the amount of tax base) 】 the smaller of the fair market price ratio of property tax and comprehensive real estate holding tax 】 the property tax rate 】 the property tax rate. Therefore, in the case of comprehensive real estate holding tax in 2009, the fair market price ratio of property tax should be calculated according to the formula of "(public notice price - the amount of tax base) 】 the fair market price ratio of property tax 】 the fair market price ratio of property tax 】 the property tax rate.

C. Meanwhile, in cases where the Ordinance of the Ministries, such as the Enforcement Rule, delegates some of the requirements for an administrative disposition to the Ordinances, the provisions of the Ordinance shall also be binding on citizens. However, in cases where the Ordinance of the Ministries amended the matters that meet the requirements for a disposition under the statutes without delegation of the statutes, even though there is no delegation of the delegation of the statutes, the provisions of the Ordinance shall be deemed to have the nature of an administrative order, which is applied within an administrative organization, and shall not have any external binding force on citizens. Therefore, even if a certain administrative disposition violates the provisions of the Enforcement Rule, etc. with no legal nature, the disposition is not unlawful merely because it does not violate the provisions of the Enforcement Rule, etc., and it shall not be deemed to have been legitimate on the ground that it does not comply with the requirements prescribed in such regulations, etc. In such cases, the legality of the disposition shall not be determined on the basis of the relevant provisions of the Acts and subordinate statutes, such as the Act binding upon the general public, and shall not be determined on the general public (see, e.g

As seen earlier, the amount of property tax deducted from the amount of comprehensive real estate holding tax, such as housing, should be calculated in accordance with the instant Enforcement Decree, and thus, each of the instant dispositions cannot be deemed lawful solely on the ground that it was calculated in accordance with the instant Enforcement Rule

3. Nevertheless, the lower court determined otherwise, that the Defendants calculated the amount of property tax deducted by applying the instant formula in the Enforcement Rule. In so determining, the lower court erred by misapprehending the legal doctrine on the method of calculating the amount of property tax deducted from the amount of comprehensive real estate holding tax, such as housing. The allegation contained in the grounds of appeal

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.