In the calculation method of the deductible property tax, it is the double taxation in terms of property tax.

Even if there is a change in the formula of the Enforcement Decree, the purpose of the amendment is not to reduce or change the scope of the property tax to be deducted, and the deducted amount of the property tax should be calculated according to the formula of "property tax" (the publicly notified price-tax base amount) 】 the smaller of the fair market price ratio of the property tax and the attached tax 】 the property tax rate

Article 9 of the Gross Real Estate Tax Act

2014Guhap3983 Revocation of Disposition rejecting a request for rectification of comprehensive real estate holding tax

AAA Union Federation

O Head of tax office

November 13, 2015

November 23, 2015

1. The defendant's rejection disposition against the plaintiff on June 18, 2013 regarding the claim for rectification of the comprehensive real estate holding tax for the year 2009 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On December 15, 2009, the Plaintiff on June 1, 2009, which was the tax base date for comprehensive real estate holding tax in 2009 to the Defendant.

Comprehensive real estate holding tax for the year 2009 756,029,070

The Plaintiff reported and paid KRW 151,205,810. The Plaintiff: (a) calculated the amount of comprehensive real estate holding tax pursuant to Articles 9(3) and 14(3) and (6) of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (amended by Act No. 9273, Dec. 26, 2008; hereinafter referred to as the “Revised Act”); (b) calculated the amount of the comprehensive real estate holding tax after the amendment by Presidential Decree No. 21293, Feb. 4, 2009; (c) calculated the amount of the deducted property tax; (d) calculated the amount of the comprehensive real estate holding tax pursuant to Articles 4-2 and 5-3(1) and (2) of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act and the Enforcement Rule of the Comprehensive Real Estate Holding Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 9273, Sep. 23, 2009; hereinafter referred to as the “Fair Tax Rate No. 5(2) x3).

B. In calculating the amount of property tax deductible to the Defendant on December 14, 2012, the Plaintiff “(Public Notice Price -

Inasmuch as tax base amount 】 fair market price ratio of property tax 】 standard tax rate of property tax 】 should be calculated according to the formula, a request for correction was made to the effect that gross real estate tax for 2009 756,029,070 won, gross real estate tax for special rural development tax for 151,205,810 won, gross real estate tax for special rural development tax for 211,641,120 won, special rural development tax for 42,328,220 won, but the defendant rejected the plaintiff's request for correction on June 18, 2013 (hereinafter referred to as "decision of rejection of this case").

C. On September 24, 2013, the Plaintiff filed an appeal with the Tax Tribunal on September 24, 2013, but was dismissed on November 27 of the same year.

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 3, Eul evidence No. 1 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Articles 9(3) and 14(3) and (6) of the amended Act and Articles 4-2 and 5-3(1) and (2) of the Enforcement Decree of the instant case provide that when calculating the amount of comprehensive real estate holding tax, the amount of tax imposed as property tax on the portion which is subject to comprehensive real estate holding tax shall be deducted. However, in calculating the deducted amount of property tax, the Defendant did not deduct only the amount of tax imposed on the portion which is subject to comprehensive real estate holding tax by multiplying the amount of property tax (comprehensive real estate holding tax or property tax) by the fair market price ratio again in accordance with the calculation method

Therefore, since the property tax was not partially deducted, the disposition of this case rejecting the plaintiff's request for correction that is to deduct it should be revoked because it is unlawful in violation of the principle of no taxation without law or the principle of no double taxation.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Details and purport of the amendment of the relevant statutes

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 pursuant to 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

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 Local Tax Act amended by Act No. 7843, Dec. 31, 2005 introduced a fair market price ratio system applicable to property and comprehensive real estate holding tax in order to determine the ratio to be reflected in the tax base within a certain scope based on the publicly notified price of property and comprehensive real estate holding tax, in consideration of the trend of real estate market, financial conditions, etc. However, Article 5 of the Addenda of the above Local Tax Act (amended by Act No. 7843, Feb. 6, 2009) has taken transitional measures for the annual applicable rate system of property tax and comprehensive real estate holding tax since it was abolished on February 6, 2009.

Accordingly, Articles 8(1) and 13(1) and (2) of the amended Act provide 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) of the Enforcement Decree of the Local Tax Act provides that the fair market value ratio of land subject to special aggregate taxation for the portion for which liability for tax payment is established in 2009 shall be 70/100, 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(1) of the Enforcement Decree of the Local Tax Act provides that the fair market value ratio of land and buildings shall be 70/100 of the current market value ratio, and Article 109(2) of the Enforcement Decree of the Local Tax Act provides that the fair market value ratio of housing shall be 60/100 of the current market value ratio before 200 years.

B) 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 the equity in tax burden on real estate holding and to stabilize the price of real estate by imposing property tax on a person who owns real estate at a low rate, which is a local tax, at a higher rate, at a higher rate on a person who holds real estate in excess of a certain standard amount of taxation. 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 should deduct the amount of tax imposed as property tax 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. 21293, Feb. 4, 2009) stipulate the amount equivalent to property tax calculated in accordance with the standard tax rate of property tax calculated.

After that, with the amendment of Articles 4-2 and 5-3 (1) and (2) of the Enforcement Decree of the instant case, the method of calculating the amount of property tax to be deducted is the formula in the instant Enforcement Decree, i.e., the total amount of property tax imposed on the property tax of housing, etc. 】 the amount equivalent to the property tax calculated according to the standard tax rate of property tax of housing, etc. ± the amount equivalent to the property tax calculated according to the standard tax rate of property tax of housing, etc. ± the amount equivalent to the property tax calculated according to the standard tax rate of property tax of housing, etc. ± The purpose of this is to abolish

C) 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 a house, stated in the molecular in the previous formula in the Enforcement Decree, was changed to the “tax base for a house, etc.” as stated in the molecular 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. Therefore, even if the method of calculating the amount of property tax to be deducted was changed to the instant 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 to be deducted (see, e.g.

2) The method of calculating the property tax deductible pursuant to 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 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 on which the property tax and the comprehensive real estate holding tax are imposed respectively for the portion of "public notice price - the standard amount of taxation - the standard amount of taxation," which overlaps each other, i.e., (public notice price - the standard amount of taxation - the fair market price ratio of the comprehensive real estate holding tax x the portion on which the property tax is imposed in duplicate (i.e. the portion of property tax limited to the comprehensive real estate holding tax) x the portion on which the comprehensive real estate holding tax is imposed. In addition, it is unnecessary to consider this portion in calculating the amount of property tax which is deducted on the ground that the comprehensive real estate holding

In full view of these points, the amount of property tax to be deducted according to the formula of the Enforcement Decree of this case 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 . Therefore, in cases of comprehensive real estate holding tax in 2012, the fair market price ratio of the property tax x 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

Meanwhile, in a case where the Ministerial Ordinance, such as the Enforcement Rule, prescribed a part of the requirements for an administrative disposition as prescribed by the Ordinance, delegated by the Ordinance, the provisions of the Ministerial Ordinance shall also be binding on the citizens. However, in a case where the Ordinance changes matters that meet the requirements for disposition as prescribed by the Act and subordinate statutes without delegation of the Act and subordinate statutes, the provisions of the Ministerial Ordinance shall be deemed to have the nature of an administrative order applied within an 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 is not unlawful solely on the ground that it does not violate the requirements prescribed by the Enforcement Rule, and it shall not be deemed legitimate on the ground that the disposition does not comply with the requirements prescribed by the said Rule, but shall be determined based on the relevant provisions of the Act and subordinate statutes, such as the Act binding upon the general public (see, e.g., Supreme Court Decision 2011Du10584, Sept. 12, 2013).

3) Whether the instant disposition is lawful

Therefore, the Plaintiff’s gross real estate tax deduction by applying the amended Enforcement Rule formula.

Since the amount of property tax is calculated, the agency that requests correction in accordance with the formula of the Enforcement Decree of this case

The Gu is reasonable, and the defendant's refusal disposition of this case is illegal.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.