Tax Tribunal 2015Seoul Northern1294 (29 April 29, 2015)

As the amount of the property tax to be deducted is less than that before the amendment, the portion which is excluded from the deduction is regarded as double taxation.

As property tax equivalent to the amount of the attached tax (the whole amount in excess of the tax base) is deducted and the amount of property tax to be deducted is less than that before the revision, the portion that is excluded from the deduction is regarded as double taxation.

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

2015Guhap677555 Revocation of Disposition of Imposition of Comprehensive Real Estate Tax

The AAA and 3

Head of Central Tax Office and 2

November 19, 2015

December 17, 2015

1. Imposition of comprehensive real estate tax and special rural development tax for each of the plaintiffs listed in attached Form 1 against the defendants

Each part of the disposition exceeding the amount in attached Form 2 shall be revoked.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The Defendants, on November 16, 2014, as shown in attached Table 1, committed against the Plaintiffs, shall be deemed as comprehensive Dong-dong in 2013 as shown in attached Table 1.

The imposition of tax and special tax for rural development (hereinafter referred to as the "disposition of this case") was made.

B. The Defendants calculated the amount of comprehensive real estate holding tax in accordance with Articles 9(3), 14(3), and 14(6) of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (amended by Presidential Decree No. 24392, Feb. 22, 2013; Presidential Decree No. 21293, Feb. 4, 2009; Presidential Decree No. 21293, Feb. 4, 2009; Presidential Decree No. 22094, Feb. 4, 2009; Presidential Decree No. 2209, Feb. 22, 2013; Presidential Decree No. 22139, Feb. 22, 2013; Presidential Decree No. 22020, Feb. 4, 2009).

Article 4-2 and Article 5-3(1) and (2) of the Enforcement Rule of the Gross Real Estate Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 328, Feb. 23, 2013; the same contents are the same as those amended by Ordinance of the Ministry of Strategy and Finance No. 80, May 12, 2009; hereinafter referred to as the "Enforcement Rule of the Amendment"; hereinafter referred to as the "former Enforcement Rule") of the attached Form No. 3 of the Enforcement Rule of the Gross Real Estate Tax Act.

C. The Plaintiffs are dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal as follows.

However, when all of the appeals were dismissed, the appeal of this case was filed.

Defendant (Tax Office)

Date of appeal

Date of dismissal dismissal

Ministry of Central Affairs

AAA, Inc.

February 13, 2015

April 29, 2015

Ministry of Central Affairs

BBBB Corporation

February 12, 2015

April 13, 2015

South Korea

CCC, Inc.

February 16, 2015

April 21, 2015

Sung Dong-dong

DD Co., Ltd.

February 13, 2015

April 8, 2015

[In the absence of dispute with recognition, evidence 2, 6, 8, and evidence 1 (including paper numbers, hereinafter the same shall apply) and the whole purport of the pleading

3. The assertion and judgment

A. The plaintiffs' assertion

In the disposition of this case, the defendant deducted only the amount of property tax imposed on the portion which is the object of the comprehensive real estate holding tax, multiplied by the "fair market price ratio of the comprehensive real estate holding tax", and did not deduct the remaining amount of tax. This does not comply with the purport of the amended Act, but is a double taxation against which the property tax and the comprehensive real estate holding tax are imposed concurrently on the same object of taxation.

(b) Related statutes;

The details of major amendments to the Acts and subordinate statutes of comprehensive real estate holding tax shall be as follows:

1) Gross Real Estate Tax Act

(A) tax base;

Articles of the Act

previous law

Amendment Act

Article 8 (Tax Base) (1)

The tax base of comprehensive real estate holding tax on housing shall be the amount calculated by deducting 600 million won from the aggregate amount of published prices of housing by each taxpayer.

The tax base of comprehensive real estate holding tax on housing shall be the amount obtained by multiplying the amount obtained by deducting 600 million won from the aggregate of published prices of housing by each taxpayer by the fair market price ratio prescribed by Presidential Decree within the scope from 60/100 to 100/100 in consideration of the real estate market trend, financial conditions, etc.

Article 13 (Tax Base) (1)

The tax base for comprehensive real estate holding tax on land subject to general aggregate taxation shall be the amount obtained by deducting 300 million won from the aggregate amount of published prices of the relevant taxable land

The tax base for comprehensive real estate holding tax on land subject to general aggregate taxation shall be an amount calculated by multiplying the amount obtained by deducting 500 million won from the aggregate amount of publicly announced prices of the relevant land subject to taxation by each taxpayer by the fair market price ratio prescribed by Presidential Decree within the scope from 60/100 to 100/100, taking into

Article 13 (Tax Base)

The tax base for comprehensive real estate holding tax on land subject to special aggregate taxation shall be the amount obtained by deducting four billion won from the aggregate amount of published prices of the relevant land subject to taxation by taxpayer.

The tax base for comprehensive real estate tax on land subject to special aggregate taxation shall be an amount calculated by multiplying the amount obtained by deducting eight billion won from the aggregate amount of the publicly notified price of the relevant land subject to taxation by each taxpayer by the fair market price ratio prescribed by Presidential Decree within the scope from 60/100 to 100/100 in consideration of the market

B) Tax rate and amount of tax (the same purpose is to Article XIV, Section 3, 6, which provides for the comprehensive real estate holding tax rate and amount of tax on land subject to separate aggregate taxation).

Articles of the Act

previous law

Amendment Act

Article 9 (Tax Rate)

And Amount of Tax)

(1) The amount of comprehensive real estate holding tax on housing shall be the amount calculated by applying the following tax rates to the tax base (hereinafter referred to as "amount of comprehensive real estate holding tax on housing"):

(2) In calculating the amount of comprehensive real estate holding tax on housing, with respect to the comprehensive real estate holding tax on housing for which the liability to pay tax arises within the period from 2006 to 2008, the amount calculated by multiplying the tax base by tax rate under paragraph (1) by the annual application rate in each of the following subparagraphs and the tax rate under paragraph (1) shall

(3) The amount of tax imposed as property tax on housing subject to the taxation on an amount exceeding the standard amount of taxation on housing shall be deducted from the amount of comprehensive real estate holding tax on housing.

(1) The amount of comprehensive real estate holding tax on housing shall be the amount calculated by applying the following tax rates to corresponding taxation table (hereinafter referred to as "amount of comprehensive real estate holding tax on housing"):

(2) Deleted.

(3) The amount of tax imposed as property tax on housing subject to the relevant taxation on the amount of tax base of housing shall be deducted from the amount of comprehensive real estate holding tax on housing.

(4) Necessary matters concerning the deduction, etc. of the amount of comprehensive real estate holding tax on housing imposed as property tax on housing shall be prescribed by Presidential Decree.

(b) The formula for calculating the amount of property tax to be deducted under the Enforcement Decree of the Gross Real Estate Tax Act.

Enforcement Decree

previous Enforcement Decree

Enforcement Decree of the Amendment

Article 4-2 (Calculation of Amount of Property Tax Deduction from Amount of Comprehensive Real Estate Holding Tax on House)

The amount of tax imposed as property tax on housing which is deducted from the amount of comprehensive real estate holding tax on housing pursuant to Article 9 (4) of the Act shall be the amount calculated according to the following formula:

The amount equivalent to the property tax calculated by adding up housing / the amount equivalent to the property tax calculated by the standard tax rate of property tax on housing / The amount equivalent to the property tax on housing / The amount equivalent to the property tax on housing.

The amount of tax imposed as property tax on housing which is deducted from the amount of comprehensive real estate holding tax on housing pursuant to Article 9 (4) of the Act shall be the amount calculated by the following formula:

The amount equivalent to the property tax calculated by the standard tax rate of property tax on housing (referring to the standard tax rate under Article 111 (1) of the Local Tax Act; hereinafter the same shall apply) on the tax base on housing 】 The amount equivalent to the property tax calculated by the standard tax rate of property tax on housing / The amount equivalent to the property tax calculated by adding up houses.

Article 5-3 (Subdivision of Land)

Amount of comprehensive real estate holding tax

Property tax deduction) 1

The amount of general aggregate tax deducted from the amount of general aggregate tax on land pursuant to Article 14 (7) of the Act and the amount of tax imposed as the property tax on land subject to tax shall be the amount calculated by the following formula:

The amount of property tax imposed as property tax on land subject to general aggregate taxation 】 The amount equivalent to the property tax calculated as the standard tax on land subject to general aggregate taxation / The amount equivalent to the property tax calculated as the standard tax on land subject to general aggregate taxation / The amount equivalent to the property tax calculated as the standard tax on property subject to

The amount of tax imposed as property tax on land which is subject to general aggregate taxation to be deducted from the amount of general aggregate tax on land pursuant to Article 14 (7) of the Act shall be the amount calculated by the following formula:

The amount equivalent to the property tax calculated by the standard tax rate for property tax on land subject to general aggregate taxation calculated by adding up the land subject to general aggregate taxation / The amount equivalent to the property tax on land subject to general aggregate taxation / The amount equivalent to the property tax calculated by the standard tax rate for property tax on land subject to general aggregate taxation / The amount equivalent to the property tax calculated by the standard

Article 5-3 (2)

The amount of tax imposed as the property tax on land subject to special aggregate taxation which is deducted from the amount of special aggregate tax on land pursuant to Article 14 (7) of the Act shall be the amount calculated by the following formula:

The amount equivalent to the property tax calculated by the standard tax rate of the property tax on land subject to separate aggregate taxation 】 (the amount equivalent to the property tax on land subject to separate aggregate taxation / The amount equivalent to the property tax calculated by the standard tax rate of the property tax on land subject to separate aggregate taxation / The aggregate of land subject to separate aggregate

Pursuant to Article 14 (7) of the Act, the amount of tax imposed as property tax on land subject to special aggregate taxation which is deducted from the amount of special aggregate tax on land pursuant to the following formula shall be calculated in accordance with

The aggregate amount of property tax imposed as property tax on land subject to special aggregate taxation pursuant to Article 112 (1) 1 of the Local Tax Act ¡¿ The amount equivalent to property tax calculated as the standard tax on property tax on land subject to special aggregate taxation / Aggregate of land subject to special aggregate taxation / The aggregate of land subject to special aggregate

The amount equivalent to the property tax calculated according to the standard tax rate of property tax;

3) The amount of property tax in attached Form 3 of the Enforcement Rule of the Gross Real Estate Tax, among the tax base standard tax rate

previous Enforcement Rules

Enforcement Regulations of the Amendment

5. The amount of property tax and housing exceeding the standard amount;

: Tax base of comprehensive real estate holding tax 】 Applicable rate of property tax 】 0.5%

· General Cumulative Land

: Tax base of comprehensive real estate holding tax 】 Applicable rate of property tax 】 0.5%

· Separately Cumulative Land

: Tax base of comprehensive real estate holding tax 】 Applicable rate of property tax 】 0.4%

(9) The standard tax base rate for property tax;

·Housing

: [The officially announced price after reduction and exemption - 600 million (90 million won for one house for one household) 】 the fair market price ratio of comprehensive real estate holding tax 】 the fair market price ratio of property tax 】 0.4%

· General Cumulative Land

(3) The officially announced price after reduction x 50 million won x the normal market price ratio of comprehensive real estate holding tax x the fair market price ratio of property tax x 0.5%

· Separately Cumulative Land

(3) Public notice price after reduction x 8 billion won x the fair market price ratio of comprehensive real estate holding tax x the fair market price ratio of property tax x 0.4%.

4) Property tax base under local tax laws and regulations

Articles of the Act

Local Tax Act

Article 110 (Tax Base)

(1) The tax base of property tax on land, buildings and housing shall be the value calculated by multiplying the current base value under Article 111 (2) by the fair market value ratio prescribed by Presidential Decree within the scope prescribed by any of the following subparagraphs in consideration of the trend of the real estate market, local financial conditions, etc.:

1. Land and buildings: From 50/100 to 90/100 of the statutory standard prices;

2. Housing: From 40/100 to 80/100 of the statutory standard prices.

Article 109

(Fair Market Price Ratio)

"Fair market price rates prescribed by Presidential Decree" in the main sentence of Article 110 (1) of the Act means the following rates:

1. Land and buildings: 70/100 of the statutory standard price;

2. Housing: 60/100 of the statutory standard price.

C. Determination

A) Details and purport of the amendment of the relevant laws and regulations

In order to realize the tax base, the Local Tax Act amended by Act No. 7332 on January 5, 2005 requires that the property tax base should be based on the publicly notified price under the Public Notice of Values and Appraisal of Real Estate Act, but the property tax base should be calculated according to the annual application rate of the publicly notified price in order to ease the rapid tax burden following the introduction of a new system, and the Comprehensive Real Estate Holding Tax Act enacted by Act No. 7328 on January 5, 2005 requires that the amount obtained by deducting a certain amount of tax base from the total amount of the property tax base be the

However, since the above applicable ratio has been determined to be increased each year by step, it is difficult to flexibly adjust the appropriate level of tax burden, so the Local Tax Act and the amended Act amended by Act No. 7843, Dec. 31, 2005 introduced a fair market price ratio system applicable to property tax and comprehensive real estate holding tax to determine the ratio to be reflected in the tax base within a certain scope in consideration of the trend of real estate market and financial conditions, etc. However, Article 5 of the Addenda of the Local Tax Act introduced transitional measures concerning the annual applicable ratio of property tax and comprehensive real estate holding tax from February 6, 2009 to abolish it on February 6, 2009, thereby completely implementing the fair market price ratio system of property tax and comprehensive real estate holding tax.

Accordingly, Articles 8(1) and 13(1) and (2) of the amended Enforcement Decree of the Act stipulate that the fair market value ratio of housing, land subject to general aggregate taxation and land subject to special aggregate taxation (hereinafter referred to as "housing, etc.") shall be 80/100, the proviso of Article 2-4(1) shall be 70/100, the fair market value ratio of land subject to special aggregate taxation for the portion for which liability for tax payment is constituted in 2009, and the fair market value ratio of land subject to special aggregate taxation for the portion for which liability for tax payment is established in 2010 shall be 76/100, respectively. Article 109 subparag. 1 of the Enforcement Decree of the Local Tax Act under the delegation of Article 110(1) of the Local Tax Act provides that the fair market value ratio of land and buildings shall be 70/100 of the standard market value ratio, and Article 109 subparag. 2 of the Local Tax Act shall be 60/100 of the standard market value ratio (wholly amended).

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, at a higher rate. As such, property tax and comprehensive real estate holding tax are taxes based on the same taxable capacity, which is the possession of property subject to taxation, and thus, the Comprehensive Real Estate Holding Tax Act enacted by Act No. 7328 on January 5, 2005 (amended by Presidential Decree No. 21293, Feb. 4, 2009). Accordingly, Articles 4-2, 5-3 (1) and (2) of the previous Enforcement Decree (amended by Presidential Decree No. 21293, Feb. 4, 2009).

After that, the amendment to Article 4-2 and Article 5-3 (1) and (2) of the Enforcement Decree of the amended Enforcement Decree made the method of calculating the amount of property tax to be deducted according to the formula of "total amount of property tax imposed as property tax of housing, etc. 】 the amount equivalent to the property tax calculated as the standard tax rate of property tax of housing, etc. ± the amount equivalent to the property tax calculated as the standard tax rate of property tax of housing, etc. ± the formula of "the amended Enforcement Decree" (hereinafter referred to as "the formula of "the amended Enforcement Decree"), which is to abolish the annual applicable rate system, and to change the method of calculating the amount of property tax to be deducted as

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 though the portion exceeding the standard amount of taxation, such as house, stated in the molecular in the previous formula in the Enforcement Decree, was changed to the “tax base for house, etc.” as stated in the molecular in the previous formula in the Enforcement Decree of the Act, 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 deducted amount of property tax was changed to the formula in the previous Enforcement Decree, it cannot be deemed that the purpose of the amendment was to reduce or change the scope of the amount of property tax deducted (see, e.g., Supreme Court Decision

(B) the method of calculating the property tax deductible under the amended 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 - standard amount of taxation) 】 the amount of the 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, this two amounts refer to the portion where property tax and the comprehensive real estate holding tax are imposed respectively, which overlap between them, i.e., (public notice price - standard amount of taxation - standard amount of taxation) x (public notice price - standard amount of taxation) x (amount of comprehensive real estate holding tax) x (amount of property tax within the limit of the fair market price of the comprehensive real estate holding tax) x the portion on which property tax is imposed in duplicate. In addition, it is unnecessary to consider this portion of property tax deduction on the ground that the comprehensive real estate holding tax is imposed on the portion excluded from the tax base beyond the fair market price ratio of the comprehensive real estate holding tax.

In full view of these points, the amount of property tax to be deducted according to the formula of the amended Enforcement Decree x the fair market price ratio of the property tax limited to the fair market price ratio of the comprehensive real estate holding tax x the fair market price ratio of the property tax x the property tax rate x the property tax rate . Therefore, in the case of the comprehensive real estate holding tax in 2013, the amount of property tax to be deducted from the amount of the comprehensive real estate holding tax such as housing x the fair market price ratio of the comprehensive real estate holding tax x the fair market price ratio of the property tax x the property tax rate.

Meanwhile, in cases where the Ordinance of the Ministries, such as the Enforcement Rule, prescribed certain matters among the requirements for administrative disposition, according to the delegation of the Ordinance, the provisions of the Ordinance shall be deemed binding for the citizens. However, in cases where the Ordinance of the Ministries amended matters that meet the requirements for disposition prescribed in the statutes without delegation of the Act and subordinate statutes, the provisions of the Ordinance shall be deemed to have the nature of the administrative order applied within the administrative organization, and shall not have any external binding force on the citizens. Therefore, even if a certain administrative disposition violates the provisions of the Enforcement Rule, etc. with no 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 on the basis of whether it conforms to the requirements prescribed in such regulations, etc., but shall be determined on the basis of the provisions of the relevant Acts and subordinate statutes, such as the laws binding on the general public, etc. (see, e.g., Supreme Court

As seen earlier, the amount of property tax deducted from the amount of comprehensive real estate holding tax, such as housing, shall be amended Enforcement Decree.

Since it should be calculated in accordance with the formula, each of the instant dispositions cannot be deemed lawful solely on the ground that it was calculated in accordance with the amended Enforcement Rule.

C) Whether the instant disposition is lawful

Therefore, calculating the amount of property tax deducted by the Defendants by applying the formula of the amended Enforcement Rule to the instant disposition is contrary to the purport of the amended Enforcement Rule.

On the other hand, in addition to the background of the above disposition and the purport of the entire argument in the grounds for recognition, a legitimate tax amount shall be calculated according to the lawful method of calculation as shown in attached Table 2. Therefore, the part exceeding the above amount among the dispositions in this case shall be revoked in an unlawful manner.

4. Conclusion

If so, the plaintiffs' claims are reasonable, and it is decided as per Disposition.