Requirements for application of the provision of exclusion of aggregate rental housing under the former Gross Real Estate Tax Act

It is reasonable to interpret that it includes not only business registration under the Rental Housing Act but also the effective maintenance of rental business registration.

Article 3 of the Enforcement Decree of the Gross Real Estate Tax Act

2017Guhap20058 Revocation of Disposition of Imposition of Comprehensive Real Estate Tax, etc.

O Construction Co., Ltd.

O Head of tax office

July 21, 2017

August 11, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On May 9, 2016, the Defendant revoked the imposition of comprehensive real estate holding tax against the Plaintiff on May 235, 2016, the disposition of imposition of capital gains tax, capital gains tax, special rural development tax, capital gains tax, etc.

1. Details of the disposition;

A. On 2005, the Plaintiff registered as a rental business operator on x. 15, 2005, and completed a rental business after completing the Dri DB-X EE apartment 450 households (hereinafter “instant rental housing”).

B. On February 26, 2014, the Plaintiff entered into a sales contract with the FF Co., Ltd. (hereinafter “FF”) to transfer the status of a rental business operator and the ownership of the instant rental housing.

C. On February 29, 2014, the Plaintiff reported to the head of GG Metropolitan City HH (hereinafter “head of HH”) pursuant to Article 6(2) of the former Rental Housing Act, Article 8(3) of the Enforcement Decree of the same Act, and Article 3(4) of the Enforcement Rule of the same Act, and the head of HH revoked the Plaintiff’s registration of the rental business operator on February 2014.

D. On 2015, the Plaintiff transferred the ownership of the instant rental housing to F on 30th of 2015.

E. BB head of the Gun imposed property tax on June 1, 2015 on the Plaintiff on the ground that the Plaintiff owned the instant rental housing without registration as a rental business operator at the time of June 1, 2015, which was the property tax base date for property tax in 2015.

F. Accordingly, on May 9, 2016, the Defendant deemed that the instant rental house does not constitute a rental house excluding aggregate under the Comprehensive Real Estate Holding Tax Act and the Enforcement Decree thereof, and imposed a comprehensive real estate holding tax on the Plaintiff on May 9, 2016 (hereinafter “instant disposition”).

G. The Plaintiff filed an appeal on January 2016 in XX, but the Tax Tribunal dismissed the Plaintiff’s appeal on June 26, 2016.

Facts that there is no dispute over recognition, Gap evidence 2 through 6, Eul evidence 1, and the fact-finding inquiry and reply to the head of GG Metropolitan City HH in this Court, the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Business registration under the former Rental Housing Act is merely an act of simple food for the purpose of managing the rental business operator of an administrative agency. The Plaintiff was making business registration on 2005, and the FF succeeded to the Plaintiff’s status as at the tax base date was making business registration, and as long as the instant rental housing was actually leased, the instant rental housing constitutes a rental housing subject to the exclusion of aggregate, the instant disposition made on a different premise is unlawful even though it constitutes a rental housing subject to the exclusion of aggregate.

2) The head of HH cancelled the registration of the Plaintiff pursuant to Article 6 of the former Rental Housing Act and Article 8(3) of the Enforcement Decree of the same Act, and the grounds for the cancellation of the registration of the rental business operator are Article 15 of the former Rental Housing Act, and the head of HH erroneously erroneously applied the relevant Act and subordinate statutes. In addition, since the Plaintiff’s registration of the rental business operator was cancelled without implementing the procedures under Article 15 of the former Rental Housing Act, the cancellation of the registration of the Plaintiff’s rental business operator is unlawful, and the degree of illegality falls under a serious apparent and invalid, and thus the instant disposition was unlawful on the premise that the Plaintiff owned the instant

3) Even if the Plaintiff temporarily operated the rental business without registration of the rental business, the Plaintiff was actually operating the rental business while owning the instant rental housing, and the Plaintiff was inevitably holding the ownership as at the tax base date due to delayed transfer of the ownership of the said rental housing due to civil petitions, etc., and the ownership of the said rental housing was transferred to FF after two months from the tax base date, so the instant disposition was unlawful in light

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the Plaintiff’s first argument

A) When registered as a rental business operator under the former Rental Housing Act (wholly amended by Act No. 13499, Aug. 28, 2015; hereinafter the former Rental Housing Act) the former Rental Housing Act (wholly amended by Act No. 13499; hereinafter the former Rental Housing Act), it is difficult to view that registration of rental business operators under the former Rental Housing Act is merely a mere essential act for the management purpose of the competent administrative agency under the former Rental Housing Act, on the grounds that, if registered as a rental business operator under the former Rental Housing Act, such as restrictions on the sale of rental housing, reporting on the terms and conditions of lease, management of rental housing, etc., is subject to various restrictions under the former Rental Housing Act, such as restrictions on the sale of rental housing, reporting on the terms and conditions of lease, and management of rental housing.

B) Meanwhile, Article 8(2)1 of the former Gross Real Estate Tax Act (amended by Act No. 13796, Jan. 19, 2016; hereinafter referred to as the “former Gross Real Estate Tax Act”) and Article 3(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 26763, Dec. 28, 2015; hereinafter referred to as the “former Enforcement Decree of the Gross Real Estate Tax Act”) require that a rental business operator under Article 2 subparag. 4 of the former Rental Housing Act shall be a person who has registered a housing rental business under the Income Tax Act or the Corporate Tax Act as of the base date for taxation. Thus, it is reasonable to interpret that the requirements for a rental business operator under Article 3(1) of the former Enforcement Decree of the Gross Real Estate Tax Act include not only the business registration under the Rental Housing Act, but also the registration of a rental business operator.

C) In light of the aforementioned legal principles, the fact that the head of HH and the head of the Gu’s revocation of the Plaintiff’s registration of rental business on February 2, 2014 is as seen earlier. As such, the Plaintiff cannot assert the status of a rental business operator subject to the provisions of the former Comprehensive Real Estate Tax Act excluding aggregate of rental housing after the cancellation of business registration on February 2, 2014. Furthermore, as long as the Plaintiff was not a rental business operator, the circumstance that the FF succeeded to the Plaintiff’s status was registered as a rental business operator or that the instant rental housing was actually leased cannot be affected in determining whether the said rental housing was excluded. The Plaintiff’s above assertion is without merit.

2) Judgment on the second argument by the Plaintiff

A) Article 6(2) of the former Rental Housing Act provides that a person who has registered as a rental business operator shall report to the head of a Si/Gun/Gu in order to change the registered matters, and that matters necessary for the standards and procedures for reporting shall be prescribed by Presidential Decree. Meanwhile, Article 15(1) of the same Act provides that where a rental business operator registers a rental business operator by fraud or other improper means, he/she may cancel the registration in any of the following cases, such as where he/she fails to meet the registration standards

B) On the other hand, Article 15(1) of the former Rental Housing Act provides that the competent administrative agency may ex officio cancel the registration of a rental business operator when a rental business operator falls under any of the following subparagraphs, including a violation of relevant statutes, and it is difficult to deem that such provision applies even to the case where a rental business operator filed a report on the change of registered matters with an administrative agency. Ultimately, Article 6 of the former Rental Housing Act and Article 8 of the Enforcement Decree of the same Act shall apply to the case where a rental business operator filed a report on the cancellation of the registration. The administrative agency may modify the registered matters of a rental business operator by filing

C) In light of the above legal principles, the Plaintiff’s registration date of the Plaintiff’s rental business operator on 15, 2005 and the Plaintiff’s registration date of the rental business operator on 29, 2014 when five years have elapsed since then, the Plaintiff reported to the head of HH pursuant to Article 6(2) of the former Rental Housing Act, Article 8(3) of the Enforcement Decree of the same Act, and Article 3(4) of the Enforcement Rule of the same Act. As seen earlier, the Plaintiff’s registration cancellation against the Plaintiff of the head of HH head is legitimate. The Plaintiff’s aforementioned assertion on a different premise is without merit.

3) Judgment on the third assertion by the Plaintiff

As seen earlier, in order to be subject to the provisions of the former Gross Real Estate Tax Act, the said provision should be registered as a rental business operator under the former Rental Housing Act, and as long as the above requirements are not met, it cannot be deemed that the instant rental housing does not constitute a rental house under the circumstances that actually engage in rental business, and thus, the instant disposition does not contravene the principle of substantial taxation. The Plaintiff’s assertion is without merit.

3. Conclusion

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