Seoul Administrative Court 201Guhap37824 ( October 13, 2012)

In calculating the amount of comprehensive real estate holding tax, the method of calculating the deductible property tax.

The amount of property tax to be deducted when calculating the amount of the attached tax payable (the publicly notified price-tax base amount) 】 The smaller ratio of the fair market price ratio of property tax and comprehensive real estate holding tax 】 the amount to be calculated by the formula of property tax rate

Article 8 of the Gross Real Estate Tax Base Act

2012Nu13032 Revocation of the disposition of revocation of comprehensive real estate holding tax

AA Life Insurance

BB Director of the Tax Office

April 13, 2012

October 6, 2015

October 27, 2015

1. A. Articles 9(3) and 14(3) and (6) of the former Gross Real Estate Tax Act (amended by Act No. 10221, Mar. 31, 2010; hereinafter the same) stipulate that the tax amount imposed as property tax on a house, etc. subject to taxation shall be deducted from the amount of comprehensive real estate tax on a house, the amount of comprehensive real estate tax on a land, and the amount of tax on a land subject to separate aggregate taxation (hereinafter referred to as “house, etc.”).

B. First, the lower court acknowledged the following facts: (a) on the date of each disposition listed in the [Attachment 1] No. 1 to 26 of the [Attachment 2] Disposition List, the Defendants imposed comprehensive real estate tax and special rural development tax on the relevant Plaintiffs, including housing, etc. in 2009; and (b) on February 23, 2010, the Defendants issued a disposition rejecting a request for correction of comprehensive real estate tax and special rural development tax (hereinafter “each disposition of this case”) on the Plaintiff AA Co., Ltd.’s housing, etc.; (c) and (d) each amount of property tax to be deducted from the amount of comprehensive real estate tax, such as housing, etc. (amended by Ordinance of the Ministry of Strategy and Finance No. 102 of September 23, 2009), Article 5(2) [Attachment 3] of the former Enforcement Rule of the Comprehensive Real Estate Tax Act (Preparation Guidelines - the standard amount of taxation) x fair market value ratio of comprehensive real estate tax x the fair market value ratio x property tax rate (hereinafter “instant formula”).

Furthermore, the court below stated that (a) Articles 4-2, 5-3 (1) and (2) of the former Enforcement Decree of the Gross Real Estate Tax Act (amended by Presidential Decree No. 22813, Mar. 31, 201; hereinafter the same) impose the amount of property tax for houses, etc. which is deducted from the amount of comprehensive real estate tax 】 total amount of property tax for houses, etc. 】 amount calculated as standard tax rates of property tax for houses, etc. ＋ amount equivalent to property tax calculated as standard tax rates of property tax for houses, etc. 】 amount calculated as standard tax rates of property tax for houses, etc. 】 (hereinafter referred to as “instant formula of Enforcement Decree”) - amount of property tax to be deducted if the amount which becomes the standard for calculating the amount of property tax for comprehensive real estate tax exceeds the standard amount of taxation 】 amount of property tax to be deducted (the officially announced price - fair market price ratio of comprehensive real estate tax 】 (the amount which becomes the standard for calculating the amount of property tax for comprehensive real estate tax 】 amount of property tax to be determined by the formula.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

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 under 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 the

However, since the application rate of the above Local Tax Act was determined as a phased increase each year, it was difficult to flexibly adjust the fair market price so as to be a reasonable level of tax burden, so the Local Tax Act amended by Act No. 7843, Dec. 31, 2005; and the Comprehensive Real Estate Tax Act amended by Act No. 9273, Dec. 26, 2008 introduced a fair market price system applicable to property tax and comprehensive real estate holding tax in order to determine the fair market price based on the publicly notified price, and to determine the rate to be reflected in a certain tax base within a certain scope, taking into account the trend of real estate market, financial conditions, etc. However, Article 5 of the Addenda of the above Local Tax Act prescribed the fair market price ratio of 00 as 10 percent of the annual applicable rate of property tax and comprehensive real estate holding tax (wholly amended by Presidential Decree No. 20135, Feb. 6, 2009; Presidential Decree No. 2010-180, supra.

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 equity in tax burden on real estate holding and stabilize the price of real estate by first imposing property tax, which is a local tax, at a low rate on a person holding property subject to taxation, at a higher rate on a person who holds real estate in excess of a certain standard amount of taxation by adding up all taxable objects in Korea, which are national taxes. As such, since property tax and 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 (amended by Presidential Decree No. 21293, Feb. 4, 2009) was to deduct the amount of taxes imposed as property tax from the calculated amount of comprehensive real estate holding tax, and 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. hereinafter referred to as property tax rate calculated as property tax rate.

After that, on February 4, 2009, Article 4-2, Article 5-3 (1) and (2) of the Enforcement Decree of the former Enforcement Decree of the Gross Real Estate Tax Act was amended by Presidential Decree No. 21293, the method of calculating the amount of property tax to be deducted shall be determined by the formula of this case, namely, the total amount of property tax imposed as property tax on housing, etc. 】 the total amount equivalent to the property tax calculated as the standard tax rate of property tax on the tax base of housing, etc. calculated by adding the number of houses, etc. to the amount equivalent to the property tax calculated as the standard tax rate of property tax on the tax base of housing, etc.

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 of the house, etc. 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, so even if the method of calculating the deducted amount was changed to the instant formula in the previous Enforcement Decree, it cannot be deemed that the purpose of

B. Furthermore, we examine the method of calculating the property tax to be deducted in accordance with 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," which overlaps, i.e., the overlapping portion (amount of taxation - the standard amount of taxation ? the fair market price of the comprehensive real estate holding tax) 】 (amount of taxation standard) 】 The portion on which the property tax is imposed concurrently. In addition, this part is not necessary to consider when calculating the amount of property tax deducted on the ground that the comprehensive real estate holding tax is imposed.

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 】 (Public notice price - the amount of tax base) 】 the smaller of the fair market price ratio of property tax and comprehensive real estate holding tax 】 the property tax rate 】 the property tax rate. Therefore, in cases of comprehensive real estate holding tax in 2009, the fair market price ratio of property tax should be calculated according to the formula of "(public notice price - the amount of tax base) 】 the fair market price ratio of property tax 】 the fair market price ratio of property tax 】 the property tax rate.

C. Meanwhile, in a case where the Ordinance of the Ministries, such as the Enforcement Rule, prescribed certain matters among the requirements for administrative disposition, by delegation of the Ordinance, the provisions of the Ordinance shall also be binding on the citizens. However, in a case where the Ordinance of the Ministries amended the matters that meet the requirements for disposition under the Act and subordinate statutes without delegation of the Act and subordinate statutes, the provisions of the Ordinance shall be deemed to have the nature of an administrative order, which is applied within an administrative organization, and shall not be external binding on the public. Therefore, even if a certain administrative disposition violates the provisions of the Enforcement Rule, etc. with no legal nature, the disposition is not unlawful merely because it does not violate the provisions of the Enforcement Rule, etc., and the disposition shall not be deemed legitimate. In this case, the legality of the disposition shall not 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).

As seen earlier, the amount of property tax deducted from the amount of comprehensive real estate holding tax, such as housing, should be calculated in accordance with the instant Enforcement Decree, and thus, each of the instant dispositions cannot be deemed lawful solely on the ground that it was calculated in accordance with the instant Enforcement Rule

3. Nevertheless, the lower court determined otherwise, that the Defendants calculated the amount of property tax to be deducted by applying the instant formula in the Enforcement Rule. In so doing, the lower court erred by misapprehending the legal doctrine on the method of calculating the amount of property tax to be deducted from the amount of comprehensive real estate holding tax, such as a house. The ground of appeal

4. If so, the plaintiff's ground of appeal is justified, and the judgment of the court of first instance with different conclusions is unfair, and it is so decided as per Disposition.