[1] Whether the purpose of the amendment of Articles 4-2, 5-3 (1) and (2) of the former Enforcement Decree of the Gross Real Estate Tax Act, which changed the method of calculating the amount of property tax deducted from the amount of comprehensive real estate holding tax, is to reduce or change the scope of property tax deducted (negative)

[2] Calculation method of property tax to be deducted according to the formula under Articles 4-2 and 5-3 (1) and (2) of the former Enforcement Decree of the Gross Real Estate Tax Act / Calculation method of property tax to be deducted from the amount of comprehensive real estate holding tax on housing, the amount of comprehensive real estate holding tax on land, and the amount of property tax to be deducted from the amount of separate aggregate tax on land in 209 where the fair market value ratio of property tax is less than

[1] Articles 8(1), 9(3), 13(2), and 14(3) and (6) of the former Enforcement Decree of the Gross Real Estate Tax Act (amended by Act No. 1021, Mar. 31, 2010); Article 4-2 and 5-3(1) and (2) of the former Enforcement Decree of the Gross Real Estate Tax Act (amended by Presidential Decree No. 21293, Feb. 4, 2009); Article 2-4(1) and (2) of the former Enforcement Decree of the Gross Real Estate Tax Act (amended by Presidential Decree No. 2101, Mar. 1, 201); Article 2-2(1) and (2) of the former Enforcement Decree of the Gross Real Estate Tax Act (amended by Act No. 1013, Sep. 23, 2009); Article 10(2) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 2150, Jan. 2, 2013) of the Local Tax Act)

Attached 1 List of Plaintiffs (Law Firm LLC, Attorneys So-young et al., Counsel for the plaintiff-appellant)

Attached 2 List of the Defendants (Law Firm Korea, Attorneys Lee Jae-sin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Nu21593 decided December 15, 2011

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. Articles 9(3) and 14(3) and (6) of the former Gross Real Estate Tax Act (amended by Act No. 10221, Mar. 31, 2010; hereinafter the same) provide that the tax amount imposed as property tax on a house, etc. subject to taxation shall be deducted from the amount of comprehensive real estate tax on housing, the amount of comprehensive real estate tax on land, and the amount of tax on separate aggregate land (hereinafter “amount of comprehensive real estate holding tax on housing, etc.”) subject to taxation, respectively.

B. First, the lower court acknowledged the following facts: (a) on the date of original adjudication (attached Form 1), the Defendants imposed comprehensive real estate holding tax, including housing, and special rural development tax on the relevant Plaintiffs in 2009 on the date of each disposition listed in the No. 1 through 26 of the disposition list; and (b) on February 23, 2010, the Head of Jung-gu Tax Office rendered a disposition rejecting a request for correction of comprehensive real estate holding tax and special rural development tax, such as housing, etc. in the Plaintiff New World Co., Ltd. (hereinafter “each disposition of this case”), and (c) each amount of property tax to be deducted from the amount of comprehensive real estate holding tax, such as housing, etc. (amended by Ordinance of the Ministry of Strategy and Finance No. 102, Sept. 23, 2009) [Attachment Form 3] prescribed in Article 5(2) of the Enforcement Rule of the former Comprehensive Real Estate Holding Tax Act x fair market value ratio 】 fair market value ratio 】 property tax rate (hereinafter “the instant formula”).

Furthermore, the lower court determined that: (a) the amount of property tax imposed by the Defendant as property tax on housing, etc. is an amount calculated respectively according to the formula in the Enforcement Decree of the former Act (amended by Presidential Decree No. 22813, Mar. 31, 201; hereinafter the same shall apply); (b) the amount of property tax to be deducted from the amount of comprehensive real estate tax on housing, etc. 】 (total amount of property tax imposed as property tax on housing, etc. ± the amount equivalent to property tax calculated as standard tax rates of property tax on housing, etc. ± the amount calculated as standard tax rates of property tax on housing, etc. ± (hereinafter “instant formula in the Enforcement Decree”; (c) the amount of property tax to be deducted if the amount which serves as the standard for calculating the amount of property tax on housing, etc. exceeds the standard amount of taxation 】 the amount of property tax to be deducted by the formula in the Enforcement Decree of the Comprehensive Real Estate Tax Act 】 (Fair market price of comprehensive real estate tax 】 the amount to be deducted by the formula in the public notice market.

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 was determined as a phased increase each year, it was difficult to flexibly adjust the pertinent level of tax burden, so the Act was amended by Act No. 7843, Dec. 31, 2005; and the Comprehensive Real Estate Holding 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 and financial conditions. However, Article 5 of the Addenda of the above Local Tax Act adopted a 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; 2009; 30/10 of the annual applicable rate of property tax and comprehensive real estate holding tax). Accordingly, the entire statutory applicable rate of 20/10 of the total real estate holding tax and 20/10 of the former Enforcement Decree of the Housing Act.

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, at a higher rate on a person who holds real estate in excess of a certain standard amount of taxation, after adding all the taxable items in Korea. 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 on 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 for property tax calculated in excess the amount of property tax amount.

After that, the method of calculating the amount of property tax to be deducted following the amendment by Presidential Decree No. 21293 of the former Enforcement Decree of the Gross Real Estate Tax Act (amended by Presidential Decree No. 21293 of Feb. 4, 2009), namely, the instant formula in the Enforcement Decree, to change the method of calculating the amount of property tax to be deducted according to the formula in the instant case: “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 for property tax on housing ± the amount equivalent to the property tax calculated as the standard tax rate for property tax on housing, etc. ± the amount equivalent to the property tax calculated as the total amount of housing, etc. ± the method of calculating the

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 “division exceeding the standard amount of taxation, such as a house,” stated in the moleculator in the previous formula in the Enforcement Decree, was changed to the “tax base for a house, etc.” as stated in the moleculator 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, and thus, even if the method of calculating the amount of property tax was changed to the instant formula in

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 fair market price ratio of the comprehensive real estate holding tax.” The amount of the comprehensive real estate holding tax on the same portion is calculated based on the formula of “(public notice price - the standard amount of taxation) 】 the fair market price ratio of the comprehensive real estate holding tax.” However, this part of property tax should not be considered in calculating the amount of property tax deducted on the ground that the portion of “public notice price - the standard amount of taxation - the standard amount of taxation.” Since the two amounts refer to the portion on which the property tax and the comprehensive real estate holding tax are imposed respectively with respect to “public notice price - the standard amount of taxation - the fair market price of the comprehensive real estate holding tax x the same amount of property tax (public notice price - the standard amount of taxation x the standard amount of taxation x the fair market

In full view of these facts, the amount of property tax deducted under the instant formula should be calculated according to the formula of “(public notice price - the standard amount of taxation) 】 the smaller of the fair market price ratio of property tax and comprehensive real estate holding tax 】 the property tax rate. Therefore, in cases of comprehensive real estate holding tax in 209, the amount of property tax deducted from the amount of comprehensive real estate holding tax, such as housing, should be calculated according to the formula of “(public notice price - the standard amount of taxation) 】 the fair market price ratio of property tax 】 the fair market price ratio of property tax 】 the property

C. Meanwhile, in cases where the Ministerial Ordinance, such as the Enforcement Rule, delegates some of the requirements for administrative dispositions to the Ordinances, the provisions of the Ministerial Ordinance shall also be binding on the citizens. However, in cases where the provisions of the Ministerial Ordinance, even though there is no delegation of statutes, are modified to the matters that meet the requirements for dispositions prescribed by the Ordinance without any delegation of statutes, the provisions of the Ministerial Ordinance shall be deemed to have the nature of administrative orders, which are applied within administrative organizations, and shall not have any external binding force on the public. Therefore, even if a certain administrative disposition violates the provisions of the Enforcement Rule, etc. without any legal nature, the disposition shall not be deemed unlawful merely because it does not violate the provisions of the Enforcement Rule, etc. with no legal nature, and the disposition shall not be deemed legitimate. In such cases, the legality of the disposition shall not be determined not by whether it conforms to the requirements prescribed by such regulations, but by the relevant provisions of the Acts and subordinate statutes, such as the laws binding upon the general public, etc. (see, e.g., Supreme Court Decision 201

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 further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] List of Defendants: omitted

Justices Lee In-bok (Presiding Justice)