Cho High-2013-Seoul Government-111 (2013.03)

Whether it is improper to deduct an amount calculated by multiplying the amount of property tax imposed on the relevant real estate by the fair market price ratio in calculating the amount of comprehensive real estate holding tax

The deduction of the amount of property tax imposed on the relevant real estate by the fair market price ratio is not contrary to the principle of no taxation without law, double taxation prohibition principle, and trust protection principle.

Article 9 (3) of the Gross Real Estate Tax Act;

2013Guhap61975

New △△ Construction Co., Ltd. and 2

○ Head of tax office et al.

2014.02.07

2014.03.07

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Each part exceeding the reasonable amount of tax stated in the attached Table 2 among the dispositions in the attached Table 1 that the Defendants made against the Plaintiffs shall be revoked.

1. Details of the disposition;

A. On November 16, 2012, the head of the competent tax office imposed the comprehensive real estate tax of KRW 754,746,270 for the year 2012 and the special rural development tax of KRW 150,949,250 for the Plaintiff New △△△ Construction Co., Ltd. (hereinafter referred to as “new △△△ Construction”), and imposed the comprehensive real estate tax of KRW 4,857,460,740 for the year 2012 and the special rural development tax of KRW 150 for the special rural development tax. On December 4, 2012, the head of the competent tax office imposed the comprehensive real estate tax of KRW 4,857,460,740 for the purpose of KRW 971,492,140 for

나. 피고 ∇∇∇세무서장은 2012. 11. 16. 원고 주식회사 호텔◇◇(이하 '호텔◇◇'라 한다)에게 2012년 귀속 종합부동산세 10,484,885,160원과 농어촌특별세 2,096,977,030원의 부가처분을 하였다(이하 통틀어 '이 사건 처분'이라 한다).

C. As to the instant disposition, the Defendants were amended by Act No. 9273 on December 26, 2008.

In calculating the amount of comprehensive real estate holding tax pursuant to Article 9(3), Article 14(3), and Article 14(6) of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (amended by Presidential Decree No. 22813, Mar. 31, 201; hereinafter referred to as the current Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (amended by Presidential Decree No. 21293, Feb. 4, 2009; hereinafter referred to as the "former Enforcement Decree"), the criteria for preparing the list in attached Form 3(2) of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (amended by Presidential Decree No. 21293, Sep. 23, 2009); and

D. Accordingly, Plaintiff New △△ Construction filed a tax appeal on February 15, 2013, but the said appeal was dismissed on September 3, 2013. Plaintiff △△ Bank filed a tax appeal on June 29, 2013 after filing an objection on March 4, 2013, but was dismissed on September 3, 2013, and Plaintiff △△△△ Hospital filed a tax appeal on May 14, 2013, but was dismissed on August 7, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3 (including all types of numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The plaintiffs' assertion

A. Articles 9(3) and 14(3) and (6) of the Revised Act, and Articles 4-2 and 5-3(1) and (2) of the Revised Enforcement Decree of the Revised Enforcement Decree provide that in calculating the amount of comprehensive real estate holding tax, the amount of tax imposed as property tax shall be deducted with respect to the portion which is the object of taxation of comprehensive real estate holding tax. However, in calculating the deducted amount of property tax, the Defendants did not deduct only the amount of tax calculated by multiplying the amount of property tax imposed on the portion which is the object of taxation of comprehensive real estate holding tax by the fair market price ratio (comprehensive

Therefore, the imposition of comprehensive real estate holding tax without deducting the amount of the property tax partially is illegal in violation of the principle of no taxation without law or double taxation prohibition.

B. The Ministry of Finance and Economy stated that when imposing comprehensive real estate holding tax on September 3, 2003 through the explanatory materials of the title " how to change the taxation system of real estate holding", the amount of property tax imposed by local governments is entirely deducted, and thus, it is not double taxation, so there is no possibility of unconstitutionality, and only part of the property tax paid by the plaintiffs was deducted through the instant disposition. Therefore, the instant disposition is unlawful and thus, should be revoked.

3. Determination

(a) Related Acts and subordinate statutes;

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

A) Gross Real Estate Tax Act

Articles of the Act

previous law

Amendment Act

§ 8 (Tax Base)(1)

The tax base of comprehensive real estate holding tax on housing shall be the amount obtained 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 calculated 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 trend of the real estate market, financial

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 KRW 300 million from the aggregate amount of published prices of relevant taxable land by taxpayer.

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 KRW 500 million from the aggregate amount of published prices of the relevant land subject to taxation by 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

§ 13 (Tax Base) ②

The tax base for comprehensive real estate holding tax on land subject to special aggregate taxation shall be an amount obtained by deducting 4 billion won from the aggregate amount of published prices of relevant taxable land by taxpayer.

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

Belgium Tax Rate and Tax Amount (comprehensive real estate tax rate and tax amount for land subject to separate taxation)

section 14(3) and (6) which provides for section 14(3) and (6)

Articles of the Act

previous law

Amendment Act

Article 9 (Tax Rates 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 applicable 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 the tax base (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 shall be prescribed by Presidential Decree.

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

Enforcement Decree

previous Enforcement Decree

Current Enforcement Decree

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 by the following formula:

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

Article 5-3 (Deduction of Property Tax of Amount of Comprehensive Real Estate Holding Tax)

The amount of tax imposed as the property tax on land which is the object of 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 the property tax on land subject to general aggregate taxation in accordance with the aggregate amount of the property tax on 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 the

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 on

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 amount equivalent to the property tax on land

Pursuant to Article 14 (7) of the Act, the amount of tax imposed as property tax on the land subject to special aggregate taxation deducted from the separate aggregate tax on land pursuant to paragraph (7) of the same Article shall be

(c)

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 the property tax calculated according to the standard tax rate for property tax on land subject to special aggregate taxation / The amount equivalent to the property tax on land subject to special aggregate taxation calculated by aggregating land subject to special aggregate taxation / The amount equivalent

C) Property of the standard tax rate in attached Form 3 Dozu300 of the Enforcement Rule of the Gross Real Estate Tax

The formula of tax amount

previous Enforcement Rules

Enforcement Regulations of the Amendment

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

·Housing

: 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 and property tax amount;

·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) Public notice price after reduction x 50 million won 】 Fair market price ratio of comprehensive real estate holding tax 】 fair market price ratio of property tax 】 0.5%

· Separately Cumulative Land

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

D) Property tax base under the Local Tax Act

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 price ratio prescribed by Presidential Decree within the scope prescribed by any of the following, considering 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.

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

A) In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted as the text of the law, barring any special circumstances, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it would be consistent with the principle of fair taxation to strictly interpret that the provision of tax exemption or exemption is clearly preferential (see, e.g., Supreme Court Decision 97Nu20090, Mar. 27, 1998).

B) According to the relevant Acts and subordinate statutes and their amendments, the Act deleted the concept of ‘tax base amount' in calculating the amount of comprehensive real estate holding tax, and sets the amount calculated by multiplying the portion exceeding the tax base amount by the fair market price ratio, among the published prices, the amount of tax imposed as property tax, such as housing subject to taxation, is to be deducted from the tax base amount. Therefore, the formula of ‘tax base amount of housing, etc.' (public notice price - 60 million won, etc.) ¡¿ the fair market price ratio of comprehensive real estate holding tax).

C) In addition, the "amount equivalent to the property tax calculated by the standard tax rate for property tax, such as a house" under Articles 4-2 and 5-3 (1) and (2) of the Enforcement Decree of the amended Enforcement Decree is the amount calculated by applying the relevant tax rate to the property tax base (the amount calculated by multiplying the standard market price by the fair market price ratio) under Article 110 of the Local Tax Act. The formula for this formula is "7 (the officially announced price - the fair market price ratio of comprehensive real estate holding tax x the fair market price ratio of property tax x the fair market price ratio of property tax x the fair market price ratio of property tax x the property tax rate]. Ultimately, the specific formula for calculating the amount of property tax deducted under Articles 4-2 and 5-3 (1) and (2) of the current Enforcement Decree is the amount equivalent to the property tax calculated as the standard tax rate for property tax, such as a house 】 [the amount equivalent to the property tax calculated by summing up the fair market price ratio of comprehensive real estate holding tax x the property tax rate].

D) If, as alleged by the plaintiffs, the fair market price ratio should be multiplied only once by the fair market price ratio, i.e., the fair market price ratio means the fair market price ratio of the comprehensive real estate holding tax as stipulated by the amended Act (i.e., the purport that the fair market price ratio is not multiplied by the fair market price ratio), and the amended Local Tax Act not only reflects the provisions that the fair market price ratio should be multiplied by the "fair market price ratio" in determining the property tax base (i.e., the purport of not multiplying the fair market price ratio of the comprehensive real estate holding tax under the amended Act), but also the amended Act provides that the "amount calculated by multiplying the fair market price ratio of the comprehensive real estate holding tax by the amount obtained by deducting the amount of 60 million won from the publicly notified land price by the fair market price ratio" (Article 9(3) of the amended Act). However, in calculating the deduction amount, this part of the amended Local Tax Act does not violate the above provision and thus, it is therefore unreasonable.

3) Whether the prohibition of double taxation violates the principle

A) In order to prevent double taxation by granting property tax and comprehensive real estate tax imposed on the same property by deducting it from the amount of comprehensive real estate tax to be imposed on the tax base of comprehensive real estate tax in order to prevent double taxation. This problem of double taxation is to be resolved if the 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 imposed on a person who owns real estate in excess of the tax base, but the comprehensive real estate tax is not wholly more than the amount of tax imposed on the housing, etc., but not more than the amount of 60 million won in the amount of the publicly notified price, and again, it is excluded from the tax base and tax base deducted from the amount of the comprehensive real estate tax calculated by multiplying the fair market price ratio and tax rate (the publicly notified price - the fair market price ratio) [1 - the amount of the comprehensive real estate tax to be imposed on this portion]. Therefore, the issue of double taxation does not arise.

B) However, under the previous laws, the amount of property tax equivalent to the total amount of the standard amount of taxation (the amount of taxation standard) minus the total amount of the property tax (the amount of excess of the standard amount of taxation) should be calculated, and the actual amount of comprehensive real estate tax should be deducted. In real, when the comprehensive real estate tax is imposed, the amount of property tax equivalent to the total amount of the standard amount of taxation (the amount of taxation standard of the comprehensive real estate tax) should be deducted from the tax base of the excess amount of the standard amount of taxation (the amount of taxation standard of KRW 60 million) x (the amount of taxation standard of the comprehensive real estate tax) x (1 - annual application rate) x the amount of comprehensive real estate tax should be deducted from the taxation basis of the comprehensive real estate tax, and the amount of property tax should be deducted from the amount of property tax that should be deducted from the amount of property tax imposed on the tax base of the comprehensive real estate tax, such as the relevant housing.

C) As such, the amount of comprehensive real estate holding tax under the Comprehensive Real Estate Holding Tax Act calculated by deducting the amount of tax imposed as property tax on real estate subject to the same taxation, even if the real estate subject to the same taxation is divided into the portion imposed as property tax by a local government and the portion imposed as property tax in the State, and the portion paid as property tax is not paid again. Thus, the issue of double taxation does not arise between the comprehensive real estate holding tax and the property tax (see Constitutional Court en banc Decision 2006Hun-Ba12, Nov. 12, 2008; 2006Hun-Ba71,88,94, 2007Hun-Ba71,88, 2007;

4) Whether the principle of protection of trust is violated

A) In general in administrative legal relations, in order to apply the principle of the protection of trust to an act of an administrative agency, first, the administrative agency should name the public opinion that is the object of trust to an individual; second, the administrative agency's statement of opinion is justified and there is no cause attributable to the individual; third, the administrative agency should have conducted any act based on the individual's statement of opinion; fourth, the administrative agency's disposition contrary to the above statement of opinion should lead to an infringement of the individual's interest in trust. If an administrative disposition satisfies these requirements, it is against the principle of the protection of trust unless it is likely to seriously undermine the public interest or a third party's legitimate interest (see, e.g., Supreme Court Decisions 98Du19070, Mar. 9, 199; 2004Du466, Jun. 9, 2006).

B) On September 3, 2003, the Ministry of Finance and Economy presented the public opinion that when imposing the comprehensive real estate holding tax on Sep. 3, 2003 through the explanatory materials of " how to change the real estate holding taxation system", the 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, and it is not double taxation, so there is no dispute between the parties concerned, but the amount of the property tax on the portion on which the comprehensive real estate holding tax is imposed is deducted from all the amount of the property tax imposed after the amendment was implemented. As such, the above circumstance alone alone does not lead to the defendants' disposition against

4. Conclusion

Therefore, all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.