early 201st century 5103 ( October 16, 2012)

No provision required to be a rental business operator shall be in violation of the principle of tax equality.

If the owner of a building of a house and the landowner are different, the regulations requiring that the owner of the house be a rental business operator cannot be registered as the rental business operator may not be inconsistent with or deemed to be inconsistent with the principle of tax equality due to a substantial unreasonable reason

2012Guhap10031 Revocation of Disposition of Imposition of Comprehensive Real Estate Tax, etc.

Park AA

Head of the District Tax Office

August 28, 2012

September 13, 2012

1. All of the plaintiff's claims are dismissed.

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

Each disposition in attached Form 1 taken by the Defendant against the Plaintiff on October 4, 2011 shall be revoked.

1. Details of the disposition;

A. On May 1, 1987, the Plaintiff acquired 00 OO-dong, Gangnam-gu, Seoul, about 468.6m2 (hereinafter referred to as “instant land”) and owns it until now.

B. After the acquisition of the instant land, the Plaintiff newly built and resided in the second floor, and the housing was deteriorated on March 2001, and then removed it, and ParkB, the Plaintiff, as well as the Plaintiff, newly constructed multi-household rental housing (12 households, and hereinafter referred to as “multi-household rental housing”) on the instant land with the Plaintiff’s approval for use of the site, and with the Plaintiff’s approval for use of the site, and thereafter owned and leased it until now after completing the registration for preservation of ownership on August 29, 2001.

C. On May 26, 2006, ParkB registered the type of business to the Defendant as "business type-real estate business, type-lease business, and place of business with the land in this case, and the type of business to the Defendant on the same day as the Plaintiff's history is "business type-real estate business, type-land lease-lease", and the location of the place of business was registered under the Value-Added Tax Act (general taxable person) with the land in this case.

D. Upon reporting the tax base and amount of comprehensive real estate holding tax to the Defendant, the Plaintiff and ParkB reported the instant land and the instant multi-household rental housing subject to exclusion from the aggregate of comprehensive real estate holding tax.

E. On October 31, 2011, the Defendant considered that the instant land and the instant multi-household rental housing are different from the owners, and accordingly, the instant land is not a rental housing under Article 3(1) of the Enforcement Decree of the Gross Real Estate Tax Act, and imposed on the Plaintiff each comprehensive real estate tax and special rural development tax for the period from 2006 to 2010 (hereinafter “instant disposition”).

F. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on November 21, 201, but was dismissed on February 16, 2012, and filed the instant lawsuit on March 22, 2012.

[Standard for Recognition] In the absence of dispute, the entry in the evidence A, A, 1, 2, 3, 4, 5, 5, 8, 9, 1, 2, 3, 4, and 5, and the whole purport of the pleading (including the number, if any) and

2. The legality of the instant disposition

A. The plaintiff's assertion

① Considering that Article 2(1) of the Housing Act provides that “all or part of a building with a structure in which members of a household can carry on an independent residential life for a long time as well as the land annexed thereto, the building and land annexed thereto of a multi-household rental house are one leased unit that cannot be separated from one another in leasing for residential purpose, and ParkB, the owner of the building, is registered as a housing rental business entity subject to the exclusion of the aggregate comprehensive real estate holding tax, and the Plaintiff did not formally have registered as a housing rental business entity, but in substance, it is deemed that the land annexed to a multi-household rental house is subject to the exclusion of aggregate comprehensive real estate holding tax on the land annexed to the multi

② According to Article 3(1) of the Enforcement Decree of the Gross Real Estate Tax Act, where the owner of a house and the landowner are different, such owner may not register as a rental business operator under the Rental Housing Act, and this is discriminated against without reasonable grounds depending on the unity of the building and the landowner of the house, and the provisions are unconstitutional in violation of Articles 35(3) and 122 of the Constitution, which are the basis of the Comprehensive Real Estate Tax Act.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) Judgment as to the Plaintiff’s assertion

Article 8 (1) of the Act provides that the tax base of comprehensive real estate holding tax for housing shall be the amount calculated by deducting 00 won from the aggregate of the prices of housing for each person without tax payment, and Article 2 (2) 1 of the Rental Housing Act provides that the housing prescribed by the Presidential Decree shall not be included in the scope of housing subject to aggregate tax under paragraph (1), and Article 3 (1) 1 of the Enforcement Decree of the Act provides that the housing for which the Plaintiff was registered as a rental business operator under Article 2 (4) of the Rental Housing Act may not be included in the scope of the housing for which the former is registered under paragraph (2) of the same Article for the purpose of 6 of the Rental Housing Act, and that the former may not be included in the housing for which the latter is currently leased under Article 8 (2) 1 of the Income Tax Act and Article 111 of the Corporate Tax Act for the purpose of 6 of the Enforcement Decree of the Rental Housing Act for the purpose of 1.

2) As to what content tax laws and regulations, it is a matter to be determined by policy and technical decisions based on accurate data on the status of national finance, social and economic, national income, and national life, which is to be determined by legislators’ legislative formation discretion.

Article 3(1) of the Enforcement Decree of the Gross Real Estate Tax Act provides for the requirements of rental housing excluded from the sum of tax bases pursuant to Article 8(2) subparag. 1 of the Rental Housing Act, and provides for the requirement of tax exemption or tax exemption in tax laws, the legislative discretion of the legislator unless the provision is clearly unreasonable (see, e.g., Supreme Court Decision 9Du7265, May 29, 2001). Therefore, Article 2 subparag. 4 of the Rental Housing Act provides for the requirements of rental housing excluded from the sum of tax bases, and provides for the requirements of Article 3 subparag. 4 of the Enforcement Decree of the Rental Housing Act to ensure that the owner of the housing and the owner of the housing under Article 168 of the Income Tax Act are not in accord with those of the rental business under Article 2 subparag. 4 of the Rental Housing Act, and that the owner of the housing and the owner of the housing are in accord with those of the housing under Article 168 of the Rental Housing Act.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.