Plaintiff

The head of Jongno-gu Seoul Metropolitan Government

March 22, 2013

Seoul Administrative Court Decision 2012Guhap15975 decided October 12, 2012

The judgment of the first instance shall be revoked.

The defendant's disposition rejecting reduction or correction made against the plaintiff on February 3, 2012 shall be revoked.

All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The relevant part of the judgment of the first instance is the same.

2. The plaintiff's assertion

Since part of the instant housing acquired by the Plaintiff is used as a residential purpose independently, and its acquisition value does not exceed KRW 900 million, the reduction rate of 75% should be applied in calculating acquisition tax and local education tax, and special rural development tax should be exempted since the exclusive residential area is not more than 85 square meters. Therefore, the instant disposition dismissing the Plaintiff’s request for reduction reduction/reduction on the ground that the entire acquisition value and the exclusive residential area of the instant housing exceeds KRW 90 million and 85 square meters is unlawful

3. Related statutes;

It is as shown in the attached Table related statutes.

4. Determination

(a) Whether the sectional ownership relationship is recognized;

In order to establish sectional ownership of one building, there is only one building in an objective and physical aspect, and separate parts of the building should have independence in structure and use, as well as physically partitioned parts of the building should be the object of sectional ownership. In order to recognize the establishment of sectional ownership, registration of indication of collective building ledger or sectional ownership is not necessarily required (see Supreme Court en banc Decision 2010Da71578, Jan. 17, 2013).

Comprehensively taking account of the overall purport of Gap evidence Nos. 7, 8, and 13 (including paper numbers), Eul evidence Nos. 1-1, 2-2, and the overall purport of each video and pleading, the housing of this case is <1> The floor, gate, and several rooms are installed in the form of chiller, centering around Mail among wooden and Han-style's single-story's single-storys, and <2> the housing of this case was constructed at the end of the Gu and became a state-owned in 1954, and was sold to non-party No. 1, etc. and the ownership transfer registration has been made in succession in the form of shares;3) The plaintiff acquired the shares of this case in the auction procedure, and there was a room installed the heating system of oil boiler and Katan-gun's old-style's old-age, and the entrance that can have access to the house of this case is established separately from the heating system and external drainage, and the entrance of this case can have access separately.

According to the above facts, equity right holders, including the plaintiff, can be deemed to have divided ownership of specific parts corresponding to the share of ownership of the housing of this case.

(b) Standards for reduction or exemption of acquisition tax, local education tax and special rural development tax;

Article 40-2 of the Restriction of Special Local Taxation Act provides that acquisition tax shall be reduced by 75/100 if a house, the value of which at the time of acquisition does not exceed KRW 900 million, and Article 151-1 (b) of the Local Tax Act provides that in determining the amount of local education tax, where the reduction rate of acquisition tax is determined by the Acts and subordinate statutes on local tax reduction and exemption, the relevant reduction rate of acquisition tax shall apply. Article 4-9 of the Act on Special Rural Development and Special Rural Development and Article 4-4 (4) of the Enforcement Decree of the Act on Special Rural Development do not impose special rural development tax on a house, the exclusive residential area of which does not exceed 85 square meters per house or household. Thus, we examine whether the acquisition tax, local education tax, and special rural development tax should be reduced or exempted based on the acquisition value and exclusive residential area

In case of property tax, Article 104 subparag. 3 of the Local Tax Act provides that "a house used in property tax means a house under Article 2 subparag. 1 of the Housing Act." Article 2 subparag. 1 of the Housing Act provides that "a house means all or part of a building with a structure that makes it possible for members of a household to live an independent residential life for a long time, and land annexed thereto, which shall be classified into detached houses and multi-unit houses," and Article 112 of the Enforcement Decree of the Local Tax Act provides that "a part of a house shall be treated as a house where a household satisfies certain requirements, by providing that "a house shall be deemed a house where a house is separated for one household to be used separately."

On the other hand, Article 6 subparagraph 2 of the Local Tax Act, which defines the term used in acquisition tax, provides that "real estate means land and a building", and Article 6 subparagraph 4 of the same Act provides that "building means a building (including a building similar thereto) under Article 2 (1) 2 of the Building Act," and Article 2 (2) of the Restriction of Special Local Taxation Act provides that "no special provision exists, the meaning of the term used in this Act shall be governed by the Framework Act on Local Taxes and the Local Tax Act," and there is no provision that clearly stipulates whether part of a house in the relationship of sectional ownership under the Restriction of Special Local Taxation Act or the Local Tax Act falls under "house" under Article 40-2 of the Restriction of Special Local Taxation Act.

In addition, Article 4(4) of the Enforcement Decree of the Act on Special Rural Development Tax, which stipulates the non-taxation requirements pursuant to the delegation of Article 4 subparag. 9 of the Act on Special Rural Development Tax, provides that "a common residential house prescribed by Presidential Decree in Articles 4 subparag. 9 and 11 of the same Act means a residential building below the national standard housing size under Article 2 subparag. 3 of the Housing Act and land annexed thereto" and does not clearly stipulate whether part of a house with sectional ownership is non-taxable.

However, Article 13 of the Enforcement Decree of the Local Tax Act, which is a provision on the tax base and tax rate of acquisition tax, provides that "real estate, etc. shall be imposed according to the actual status at the time of acquisition of the relevant article except as otherwise provided for in this Decree: Provided, That where the actual status at the time of acquisition is unclear, it shall be imposed according to the registration on the public register; ② Multi-family housing under the Enforcement Decree of the Local Tax Act or the Local Tax Act is not necessarily bound by the Building Act or the Housing Construction Promotion Act as its own concept, but should be judged in light of its legislative intent from an independent perspective of tax law (see Supreme Court en banc Decision 92Nu15994 delivered on August 24, 1993). In the case of a multi-unit house in co-ownership relationship, it shall be limited to multi-family housing in substance because it would be the object of independent transaction in terms of social concept, and the non-taxation and exemption system of acquisition tax under the Local Tax Act shall be limited to a part of the building that meets the requirements for non-taxation and exemption system.

Therefore, the instant disposition based on the fact that acquisition tax, local education tax and special tax for rural development should be calculated on the basis of the acquisition value and exclusive residential area of the entire housing of this case is unlawful.

5. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance, which has different conclusions, is unfair, so it is revoked by accepting the plaintiff's appeal, and it is so decided as per Disposition with the decision to revoke the disposition of this case.

[Attachment Form 5]

Judges Lee Ki-taik (Presiding Judge)