Seocho 2012west 1636 (No. 22, 2012)

The revised Comprehensive Real Estate Tax Act does not violate the principle of no taxation without law or double taxation prohibition.

The amended Gross Real Estate Tax Act and the Enforcement Decree thereof do not unreasonably reduce the amount of property subject to deduction, but have improved the unreasonable deduction of excess amount of property tax pursuant to the previous laws, and thus are regulations to achieve the principle of substantial taxation and the principle of tax equity. Therefore, it does not violate the principle of no taxation without law and the

Revocation such as the disposition of imposition of comprehensive real estate holding tax, etc., 2012Guhap23679

AAA Construction Corporation and three others

2 others, the director of the Southern District Office

October 5, 2012

November 2, 2012

1. All of the plaintiffs' claims are dismissed.

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

The Defendants’ imposition of comprehensive real estate tax for year 201 and special rural development tax for the relevant Plaintiffs on the date of each disposition listed in the attached Table 1 disposition list shall be revoked in all the parts exceeding the comprehensive real estate tax and special rural development tax listed in the attached Table 2.

1. Details of the disposition;

A. The Defendants imposed on the Plaintiffs the total sum of Busan Eastern tax and special tax for rural development in 2011 on each of the dispositions listed in the separate disposition list in attached Table 1 (hereinafter “each of the dispositions in this case”).

B. In calculating the amount of property tax deducted in the calculation of the amount of comprehensive real estate holding tax in accordance with Articles 9(3) and 14(3) and (6) of the former Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (amended by Act No. 9273, Dec. 26, 2008; hereinafter referred to as the "Enforcement Decree of the same Act") (amended by Act No. 10789, Jun. 7, 201; hereinafter referred to as the "amended Act"), the Defendants should make detailed calculation method of property tax in attached Form 20 of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (amended by Presidential Decree No. 21293, Feb. 4, 2009; hereinafter referred to as "the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act") x 30 percent of the amount of property tax calculated in annexed Form 4-2 of the Enforcement Rule of the Comprehensive Real Estate Holding Tax Act (hereinafter referred to as "the amended Enforcement Decree") x 30-2 of the comprehensive Real Estate Holding Tax Act.

C. The Plaintiffs appealed and filed a request for a trial on each corresponding day as stated in the list of the proceedings in the attached Form 3. However, the Tax Tribunal dismissed the request respectively.

[Ground of Recognition] The facts without dispute, Gap evidence 1 and 2, and Eul evidence 1 (including each number), and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) If property tax and comprehensive real estate tax are imposed concurrently on the same taxable object, it is unlawful as double taxation. Therefore, Articles 9(3), 14(3), 14(6), 4-2, and 5-3(1) and (2) of the amended Enforcement Decree provide that property tax shall be deducted on the taxable subject matter of comprehensive real estate tax in calculating the amount of comprehensive real estate tax, and the amount of the comprehensive real estate tax shall be deducted on the taxable subject matter of comprehensive real estate tax. However, in calculating the deducted amount of property tax, the amount of property tax imposed on the taxable subject matter of comprehensive real estate tax is deducted from the amount of property tax calculated by multiplying the amount of property tax (comprehensive real estate tax or property tax) by the fair market price ratio. Accordingly, in order to calculate the amount of comprehensive real estate tax and special rural development tax for the plaintiffs in 2011, each disposition in this case should be calculated by the same method as the entry in the separate calculation statement, but it is unlawful or invalid because it does not violate the principle of no taxation without law.

2) The Ministry of Finance and Economy stated that when imposing a comprehensive real estate holding tax on September 3, 2003 through the explanation of the title " how to change the taxation system of real estate holding?", the entire amount of the property tax imposed by local governments is deducted from the total amount of the property tax imposed by local governments, so it is not double taxation, and there was no possibility of unconstitutionality, but the part of the property tax paid by the plaintiffs through each of the dispositions of this case was deducted from the part of the property tax paid by the plaintiffs, and each

B. Relevant statutes

Attached Table 5 shall be as stated in the relevant statutes.

C. Determination

1) As to the scope of property tax deducted in calculating the amount of comprehensive real estate holding tax

A) The details of major amendments to the laws and regulations of comprehensive real estate holding tax are as follows.

(1) The former Gross Real Estate Tax Act

O Tax Base

O Tax Rate and Amount of Tax

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

(3) The formula in the standard tax rate of property in attached Form 3 (2) of the Enforcement Rule of the Comprehensive Real Estate Tax

(4) Property tax base under the Local Tax Act

B) According to the above-mentioned Acts and subordinate statutes and their amendments, and ① the previous laws are calculated by calculating the amount of comprehensive real estate holding tax up to 2008, the amount of tax base for housing or land subject to separate taxation (hereinafter referred to as "housing, etc."). The amount in excess of the standard amount of property tax (limited to 000 billion won summing up the officially announced price of housing, and 300 million won summing up the publicly announced price of land subject to separate taxation, and hereinafter referred to as "00 won, etc.") shall be determined as the tax base, and the amount of property tax imposed on the amount in excess of the standard amount of property tax shall be deducted by the applicable rate and tax rate for the corresponding year, and the detailed formula in which the amount of property tax to be deducted is to be calculated by multiplying the amount of property tax to the tax base, such as the property tax rate of 00 won calculated by adding up the newly amended standard tax rate of property tax x 20 years to the amount of property tax base, such as the property tax rate of property tax to be calculated by x .

(C) If the plaintiffs' tax base is to be determined by the formula of "Fair Real Estate Tax Law", and the revised formula of "Fair Real Estate Tax Law" multiplied by the fair market value ratio of 00 won, and the revised formula of "net Real Estate Tax Law" is to be interpreted as the amount calculated by multiplying the tax base by the revised formula of "net Real Estate Tax Law" (the revised formula of "net Real Estate Tax Law" by the fair market value ratio of 00 won, and the revised formula of "net Real Estate Tax Law" should be interpreted as the amount calculated by multiplying the revised formula of "net Real Estate Tax Law" by the revised formula of "net Real Estate Tax Law" (the revised formula of "Real Estate Tax Law", and the revised formula of "net Real Estate Tax Law", which is the provision of the revised law and the revised Enforcement Decree of the Local Tax Act, so that the tax base should not be calculated by the revised formula of "net Real Estate Tax Law" (the revised formula shall be 00 won different from the previous one, and the revised formula shall be 200 won tax base.

D) Furthermore, since the amended Act and the Enforcement Decree of the amended Act stipulate that the amount of property tax imposed on the portion subject to comprehensive real estate holding tax should be deducted from the "relevant taxable object", and the "amount calculated by applying the standard tax rate to the "amount of property tax (tax base) applied to the portion subject to comprehensive real estate holding tax", it is reasonable to interpret that the amount of property tax imposed on the portion subject to comprehensive real estate holding tax should be 'the amount calculated by applying the standard tax rate to the "amount of property tax applicable to the officially assessed land value", and it is possible to prevent double taxation problem where comprehensive real estate holding tax is imposed on the same subject matter as property tax under the principle of legalism or the requirements for non-taxation or tax exemption, and the interpretation of tax laws should not be interpreted in accordance with the principle of fair taxation (see, e.g., Supreme Court Decision 00Du10000, supra) and the revised Enforcement Decree of the Act clearly provides that the whole amount of property subject to comprehensive real estate holding tax should not be considered to be more than the standard tax base amount before the revised tax base amount (see, etc.).

2) Whether the amended Enforcement Rule is unconstitutional and illegal

A) Whether the principle of no taxation without law is violated

The method of preparing the amended Enforcement Rule is that the method of calculating the amount of property tax to be deducted under the previous Act and the previous Enforcement Decree, depending on the change of the standard of property tax to the "standard of tax base for the amount of property tax to be deducted", the application rate of property tax and property tax rate to the excess amount of the tax base under the previous Act and the previous Enforcement Decree shall be changed to the tax base amount multiplied by the fair market price ratio of property tax and property tax rate, and the amount of property tax to be deducted under the amended Act and the amended Enforcement Decree shall not be unreasonably reduced. The amendment is not in violation of the principle of substantial taxation and the principle of taxation since it improved the unreasonable deduction of the excessive amount of property tax under the previous Act, as seen below, so it does not violate the principle of no taxation without law.

B) Whether the prohibition of double taxation is in violation of the principle

The plaintiffs are in violation of the principle of double taxation if the nature of the burden on the same taxable object is identical to that of the same taxable object, and since the property tax and the comprehensive real estate tax which are uniform real estate holding tax for the unified taxable object are imposed concurrently, the problem of double taxation is inevitably prepared, and the Comprehensive Real Estate Tax Act adjusts the problem of double taxation with the property tax by allowing the deduction of the property tax already paid in calculating the tax amount, so the Enforcement Rule of the Comprehensive Real Estate Tax to deduct only a part of the property tax, so it is unconstitutional and unlawful as it violates the principle of double taxation prohibition, but it is not justified for the following reasons.

① In order to prevent the phenomenon in which property tax and comprehensive real estate tax are imposed double taxation by deducting property tax from the amount of comprehensive real estate tax to be imposed on uniform property in order to prevent double taxation. The issue of double taxation is to be resolved if comprehensive real estate tax is deducted from the amount of comprehensive real estate tax to be imposed on the portion on which the comprehensive real estate tax is imposed. However, the comprehensive real estate tax is not wholly imposed on a person who owns real estate in excess of the amount of taxation standard, but not in excess of the amount of taxation standard of 00 won on a house, etc. from the amount of public notice price, but in excess of the amount of taxation standard of 00 won on the house, etc., the amount excluded from the amount of taxation standard and tax base [the amount of comprehensive real estate tax (the publicly notified price - 1-Fair market price rate)] calculated by multiplying the amount of taxation standard and tax base [the amount excluded from the fair market price - the amount of property tax should not be calculated by multiplying the amount of comprehensive real estate tax by the fair market price ratio - - the amount excluded from the fair market price.

② However, in the previous laws, the portion of the total amount of the published value minus the total amount of the property tax (amount of the standard amount of taxation) should be deducted from the total amount of the property tax equivalent to the total amount of the published value (amount of the standard amount of taxation), and the actual comprehensive real estate tax was imposed only on the tax base after multiplying the excess amount of the standard amount of taxation by the annual applicable rate (the current fair market price ratio of the comprehensive real estate tax), not on the total amount of the taxation standard amount, but on the tax basis after deducting the amount of the property tax equivalent to the total amount of the standard amount of taxation from the total amount of the taxation standard amount of the global real estate tax, and in accordance with the previous laws, the amount of the property tax was excluded from the tax base of the comprehensive real estate tax (the published value - 1 - annual applicable rate) x (1) from the total amount of the standard amount of taxation standard amount of the taxation standard amount of the comprehensive real estate tax, and the property tax was excessively deducted from the amount of the property tax to be deducted.

③ As such, the amount of comprehensive real estate holding tax under the Comprehensive Real Estate Holding Tax Act is calculated by deducting the amount of tax imposed as property tax on real estate subject to taxation, and ultimately, even in cases where real estate subject to uniform taxation is divided between the portion imposed as property tax and the portion imposed as property tax by the local government, and the portion paid as property tax is not paid again, and there is no problem of double taxation between comprehensive real estate holding tax and property tax (see Constitutional Court en banc Decision 2006HunBa12, 2007HunBa71, 88, 94, 208HunBa3, 208HunBa12, 2007HunBa71, 62, and 208Hun

④ In accordance with the amended Enforcement Rule, even if the amount of property tax on the subject of comprehensive real estate holding tax is not partially deducted, and in imposing comprehensive real estate holding tax, any constitutional order that the amount of property tax already paid should be deducted in full cannot be considered as being granted to legislative parties. Moreover, the amended Enforcement Rule merely provides the specific formula of the amount of property tax subject to deduction under the amended Enforcement Rule and the amended Enforcement Decree, and thus does not violate the principle of no taxation without law, as seen earlier. Furthermore, even if the plaintiffs' assertion that this part of the amended Enforcement Rule and the amended Enforcement Rule point out that the contents of the amended Enforcement Rule are unconstitutional, the legislative discretion should be adopted as to how to eliminate or relax the imposition of taxes on the same subject of taxation, and how to adjust it. Accordingly, it cannot be said that the legislative action is a person who clearly deviates from the limit of legislative discretion just because it did not deduct some amount of tax in imposing comprehensive real estate holding tax and property tax.

3) Whether the principle of protection of trust is violated

A) Generally in administrative legal relations, in order to apply the principle of trust protection to the acts of administrative agencies, first, the administrative agency should name the public opinion that is the subject of trust to the individual, second, the administrative agency should not have any cause attributable to the individual with respect to the trust of the individual, third, the individual should have trusted and trusted the opinion list, third, the administrative agency should have conducted any act in violation of the above opinion list, and fourth, the administrative agency should have made a disposition contrary to the above opinion list, thereby infringing on the interests of the individual who trusted the opinion list. If any administrative disposition satisfies these requirements, it is unlawful (see, e.g., Supreme Court Decisions 98Du19070, Mar. 9, 199; 2004Du466, Jun. 9, 2006).

B) According to the evidence evidence Nos. 4, and the financial economy division of Sep. 3, 2003, when imposing the comprehensive real estate holding tax through the explanatory material of the title " how to change the taxation system of real estate?", the whole amount of the property tax imposed by the local government is deducted from the total amount of the property tax imposed by the local government when imposing the comprehensive real estate holding tax, and it is recognized that there is no possibility of unconstitutionality because it is not double taxation, and as seen above, the amount of the property tax for the portion on which the comprehensive real estate holding tax is imposed after the enforcement of the amended Act is deducted from all the amount of the property tax imposed after the enforcement of the amended Act. Therefore, the defendants

3. Conclusion

Then, the plaintiffs' claims of this case are all dismissed as it is without merit. It is so decided as per Disposition.