Seocho 2010Ch2413 (Law No. 9.20, 2010)

The revised Comprehensive Real Estate Tax Act does not violate the principle of no taxation without law or double taxation prohibition.

The amended Gross Real Estate Tax Act and the Enforcement Decree thereof do not unreasonably reduce the amount of property subject to deduction, but have improved the unreasonable deduction of excess amount of property tax pursuant to the previous laws, and thus are regulations to achieve the principle of substantial taxation and the principle of tax equity. Therefore, it does not violate the principle of no taxation without law and the

Article 9 of the Gross Real Estate Tax Act

Article 14 of the Gross Real Estate Tax Act

2010Guhap47091 Revocation of revocation of revocation of correction

AA Life Insurance Corporation

The director of the tax office

December 8, 2011

January 19, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s rejection of correction of the comprehensive real estate holding tax in 2009 against the Plaintiff on April 14, 2010 and the special rural development tax in 410,072,470 won is revoked.

1. Details of the disposition;

A. On December 15, 2009, the Plaintiff owned an OO 00-00 and 4,781 square meters of land, 9,054 square meters of buildings, and 457 square meters of land, 00-00 and 457 square meters of Jung-gu Seoul, Jung-gu, Seoul, and owned a comprehensive real estate holding tax, which constitutes a taxpayer for comprehensive real estate holding tax, pursuant to Articles 9 and 14 of the former Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (amended by Act No. 10221, Mar. 31, 2010; hereinafter referred to as the “amended Act”), and Articles 4-2, 5-3, 4-1, 2, 2, 308, 209, 2009, 2,86, 307, 197, 2,57, 286, 201, hereinafter referred to as the “amended Enforcement Decree”).

나. 원고는 위와 같이 종합부동산세액을 계산하면서 공제되는 재산세액을 산정함에 있어서 개정 시행령 제4조의2, 제5조의3 제1항, 제2항에서 규정하는 '주택분 또는 종 합・별도합산과세대상인 토지분 과세표준에 대하여 주택분 또는 종합・별도합산과세대상 인 토지분 재산세 표준세융로 계산한 재산세 상당액'을 '과세기준금액 초과분 공시지가 × 종합부동산세 공정시장가액비율 × 재산세 공정시장가액비윷 × 재산세 표준세울'의 방법{종합부동산세법 시행규칙(2009.9.23.기획재정부령 제102호로 개정된 것, 이하 '개정 시행규칙'이라고 한다) 별지 제3호 서식 부표 (2) 중 작성요령(이하 '작성요령'이라 고 한다) 참조}무로 계산하였다.

C. On February 26, 2010, the Plaintiff filed a request for a correction of the amount of the property tax deduction under the above paragraph (b) against the Defendant on the grounds as indicated in the above paragraph (a) below, by asserting that the amount of tax based on the deduction of the legitimate property tax was KRW 5,539,519,010 for comprehensive real estate tax, KRW 1,107,90 for special rural development tax, KRW 2,050 for comprehensive movable tax in 2009, KRW 362,350 for reduction of KRW 410,072,470 for special rural development tax and KRW 410,072,470 for special rural development tax in April 14, 2010 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1 to 3 evidence, Eul 3 evidence (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) 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 amended Enforcement Decree provide that the amount of property tax imposed as property tax shall be deducted for the portion which is the object of the comprehensive real estate holding tax in calculating the amount of the comprehensive real estate holding tax, thereby coordinating the problem of double taxation imposing property tax and comprehensive real estate holding tax on the uniformly imposed object of the comprehensive real estate holding tax. However, the Plaintiff initially reported and paid the comprehensive real estate holding tax in 209 and then deducted only the amount of tax calculated by multiplying the property tax imposed on the portion which is the object of the comprehensive real estate holding tax by the fair market value ratio (comprehensive or property holding tax) and did not deduct the remaining amount of tax. Accordingly, the preparation of the Enforcement Rule of the amended Enforcement Rule is invalid because it violates the principle of substantial no taxation without law or prohibition of double taxation, and is also unlawful.

(2) The Ministry of Finance and Economy officially expressed the opinion that when imposing the comprehensive real estate holding tax on September 3, 2003 through the explanation of the title " how to change the taxation system of real estate holding", the total amount of the property tax imposed by the local government is deemed bean entire amount of the property tax imposed by the local government, so it is not double taxation, and thus, it is unconstitutional. Nevertheless, it is against the principle of protection of trust that the Defendant rendered the instant disposition rejecting the Plaintiff's request for correction.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The major amendment of the laws and regulations of the comprehensive real estate holding tax on the scope of the amount of the property tax deducted when calculating the amount of the comprehensive real estate holding tax

(A) Details of the former Gross Real Estate Tax Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter “former Act”) and the amended Act (amended by Act No. 9273, Dec. 26, 2008; hereinafter “former Act”)

(1) Details of the former Enforcement Decree of the Gross Real Estate Tax Act (amended by Presidential Decree No. 21293, Feb. 4, 2009; hereinafter referred to as the “former Enforcement Decree”) and the Enforcement Decree of the amended Enforcement Decree

(2) Details of the former Enforcement Rule of the Comprehensive Real Estate Tax (amended by Ordinance of the Ministry of Strategy and Finance No. 80 on May 12, 2009; hereinafter referred to as the "former Enforcement Rule") and the amended Enforcement Rule

(3) Property tax base under the Local Tax Act.

(B) According to the above relevant Acts and subordinate statutes and the details of the amendment, (1) as the previous Acts and subordinate statutes calculates the amount of comprehensive real estate holding tax up to 2008, the amount exceeding the standard amount of taxation on housing or land subject to comprehensive and separate taxation (hereinafter referred to as "housing, etc.") (60 million won by summing up the officially announced price of housing, 30 million won by summing up the officially announced price of land subject to general aggregate taxation, 4 billion won by summing up the officially announced price of land subject to separate taxation; hereinafter referred to as "60 million won, etc."), shall be again determined as the tax base and then multiplied by the annual applicable rate and tax rate. As such, the detailed formula for calculating the amount of property tax to be deducted shall be as prescribed by the previous Enforcement Decree and the previous Enforcement Rule of the Act 】 The amount of property tax to be imposed on housing exceeding the standard amount of property tax (60 million won by summing up the amount of property tax to the newly amended standard tax base of property tax to be imposed on housing, such as the amount of property tax to be deducted or exempted.

(다) 이에 대하여 원고는 종전법과 개정법상 종합부동산세의 과세표준을 정하는 산식 이 '공시가격에서 6억 원 등을 공제한 금액에 연도별 적용비율과 세윷'을 곱하던 방법 에서 연도별 적용비율 대신 공정시장가액비율을 곱하는 방법으로 변경된 데 지나지 아니하고 세액은 원칙적으로 과세표준에 세울을 곱하는 것이므로, 공제되는 재산세액에 대한 개정법 및 개정 시행령의 규정 내용인 1주택 등 과세표준금액에 대하여 해당 과 세대상 주택 등 재산세 상당액'은 '과세기준초과분 공시지가에 공정시장가액비율(개정 법이 정한 공정시장가액비율을 의미하는 것인지, 개정 지방세법이 정한 공정시장가액 비율을 의미하는 것인지는 불분명하다)을 곱한 금액(과세표준)'에 재산세 표준세율을 적용하여 산출된 금액이 되어야 한다고 주장한다. 살피건대, 개정법은 종전법과 달리 '과세기준금액'이라는 개념을 삭제하면서 주택 등 공시가격 중 6억원 등을 초과하는 부분에 공정시장가액비울을 곱한 금액을 과세표준 으로 규정하였고 공제되는 재산세액의 기준이 되는 금액을 '과세기준금액'에서 '과세표준'으로 변경하였다. 그리고 개정 시행령 제4조의2, 제5조의3 제1항, 제2항에서 규정한 공제되는 재산세액 계산을 위한 산식 중 '주택 등 재산세 표준세울로 계산한 재산세 상당액'이란 개정 지방세법 제188조가 재산세 과세표준별로 차등 세율을 규정하고 있으므로, 결국 개정 지방세법 제187조에 따른 재산세 과세표준(시가표준액에 공정시장 가액비율을 곱하여 산정한 가액)에 해당세율을 적용하여 계산한 금액{(공시가격 - 6억 원 등) x 개정법상 종합부동산세 공정시장가액비율 × 재산세 공정시장가액비율 × 재산세율}을 의미하고, 위 산식은 개정 시행규칙 작성요령이 정한 산식과 일치함이 문언 상으로는 물론 계산상으로도 명백하다. 또한 원고의 주장과 같이 '공정시장가액비율'을 1회만 곱하여야 하는데, 만약 그 '공정시장가액비율'이 개정법이 정한 종합부동산세 공정시장가액비율을 의미하는 것이라면(즉 재산세 공정거래가액비율은 곱하지 않는다는 취지라면), 개정 지방세법이 재산세의 과세표준을 정함에 있어 '재산세 공정시장가액비율'을 곱하도록 한 규정에 반할 뿐 만 아니라, 원고의 주장대로라면 종전 시행령 및 시행규칙에서 공제되는 재산세액을 계산함에 있어 개정전 지방세법상 재산세 과세표준 계산시 적용되는 '재산세 적용비융' 을 산식에 규정한 것을 설명할 수 없게 된다. 만일 원고의 위 주장이 '재산세 공정시장 가액비율'만을 곱하여야 한다는 의미라면(즉 개정법상 종합부동산세 공정시장가액비울 을 곱하지 않는다는 취지라면), 개정법이 과세표준을 '공시지가에서 6억원 통을 공제 한 금액에 공정시장가액비율을 곱한 금액'으로 정하고 공제되는 재산세액의 기준이 되 는 금액을 '주택 등 과세표준금액'으로 규정하고 있음에도(개정법 제9조 제3항), 그 공 제액을 계산함에 있어 종합부동산세 과세표준 계산시 적용하여야 할 종합부동산세 공 정시장가액비율을 곱하지 않아야 한다는 것이어서, 이는 위 규정에 명백히 위배됨은 물론이고 개정법이 정한 '주택 등 과세표준금액에 대하여'라는 문구가 불필요하다는 결론에 이르게 된다. 따라서 원고의 위 주장은 이유 없다.

(D) Furthermore, the Plaintiff argues that the amended Act and the Enforcement Decree of the Act stipulate that the amount of property tax imposed on the land subject to comprehensive real estate holding tax shall be deducted from the amount of property tax imposed on the land subject to imposition of aggregate and separate taxation. As such, it is reasonable to interpret the amount of property tax imposed on the portion subject to comprehensive real estate holding tax as "amount calculated by applying the standard tax rate to the amount calculated by multiplying the fair market value ratio applicable to the property tax (tax base)," and that such interpretation can prevent double taxation that is in place where comprehensive real estate holding tax is imposed on the property subject to uniform taxation. In addition, the interpretation of tax laws and regulations is not allowed to be interpreted in accordance with the provisions of the former Enforcement Decree of the Act without any justifiable reason, and it is also unreasonable to interpret the whole amount of property tax imposed on the land subject to imposition of comprehensive real estate holding tax in excess of the standard tax base (see, e.g., Supreme Court Decision 9Nu270, Mar. 27, 1998).

(2) unconstitutionality and illegality of the fiscal enforcement rules

The method of preparing the amended Enforcement Rule is merely that the method of calculating the amount of property tax to be deducted, as the former Act and the former Enforcement Decree changes the tax base amount of property tax to the "tax base amount, such as housing," the method of calculating the amount of property tax to be deducted, and that the application of the tax base ratio and the property tax convergence to the excess amount of the tax base amount under the former Act and the former Enforcement Decree is changed to the amount obtained by deducting 600 million won from the officially announced land price, such as housing, by the fair market value ratio and the property tax rate, again, the amount of property tax to be deducted under the amended Act and the amended Enforcement Decree is not unfairly reduced, but such amendment does not violate the principle of substantial taxation and the principle of no taxation without the law, as it is to improve the unreasonable deduction of the excessive amount of property tax under the previous Act, as seen below.

(B) Whether the principle of double taxation prohibition is violated

The Plaintiff’s dual taxation of the same tax item as the nature of the uniform taxation is contrary to the principle of double taxation. Since property tax and comprehensive real estate tax, which are the uniform real estate holding tax for the unified taxable object, are imposed concurrently, the problem of double taxation is inevitably created, and the Comprehensive Real Estate Tax Act stipulates that the Enforcement Rule of the Comprehensive Real Estate Tax shall deduct the property tax already paid in calculating the tax amount so that it violates the principle of double taxation, and thus it is unconstitutional and invalid. However, the above argument is without merit. (1) In order to prevent double taxation of property tax and comprehensive real estate tax from the global real estate tax base amount imposed on uniform property, it is necessary to prevent double taxation by deducting the amount of comprehensive real estate tax from the amount of comprehensive real estate tax to be imposed. (2) The issue of double taxation is to be resolved if 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 holding tax is imposed. (3) The Comprehensive Real Estate Tax Act provides that the amount of the comprehensive real estate tax shall be reduced by the amount exceeding the fair market price of taxes, such as the total amount of tax base to be imposed (600 billion won).

② However, in previous laws, the amount of property tax equivalent to the total amount of tax base (the amount in excess of the standard amount of taxation) is calculated and deducted from the total amount of the aggregate of the standard amount of taxation (the amount in excess of the standard amount of taxation). In real comprehensive real estate tax is imposed only on the tax base after the amount in excess of the standard amount of taxation calculated by multiplying the total amount in excess of the standard amount of taxation by the annual applicable rate (the current fair market price ratio of the comprehensive real estate holding tax), but the amount of property tax on the total amount in excess of the standard amount of taxation was deducted from the tax base of the comprehensive real estate holding tax (the publicly notified price - 60 million won) by deducting the amount equivalent to the property tax on the total amount in excess of the standard amount of taxation (the annual applicable rate) as well as the total amount of property tax, and the property tax is excessively deducted from the tax base of the comprehensive real estate holding tax. In order to improve this imbalance, the amended

③ As such, the amount of comprehensive real estate holding tax under the Comprehensive Real Estate Holding Tax Act is calculated by deducting the amount of tax imposed as property tax on real estate subject to the same taxation, even though the portion imposed as property tax by a local government is divided into the portion imposed as property tax and the portion imposed as property tax by the State, and thus, the comprehensive real estate holding tax is not paid again for the portion paid as property tax. Thus, the issue of double taxation does not arise between the comprehensive real estate holding tax and property tax (see Constitutional Court en banc Decision 2006Hun-Ba12, Nov. 12, 2008; 2006Hun-Ba71, 88, 94, 2007Hun-Ba71, 2007;

④ In accordance with the amended Enforcement Rule, even if the amount of property tax on the subject of the comprehensive real estate holding tax is not partially deducted, in imposing the comprehensive real estate holding tax, it cannot be deemed that a constitutional order that the amount of property tax already paid should be deducted has been granted to a legislative person, and the amended Enforcement Rule merely provides the specific formula of the amount of property tax subject to deduction under the amended Act and the amended Enforcement Decree, and thus does not violate the principle of no taxation without the law. Furthermore, even if the Plaintiff’s assertion on this part points out that the contents of the amended Enforcement Rule and the amended Enforcement Decree are unconstitutional, the legislative person has legislative discretion as to whether to exclude or mitigate the imposition of taxes on the subject of uniform taxation, and how to adjust it. Thus, in imposing the comprehensive real estate holding tax and property tax, it cannot be deemed a legislative measure taken by a legislative person significantly deviating from the limit of legislative discretion solely on the ground that some tax amounts were not deducted.

(3) Whether such a violation violates the principle of trust protection

(A) In general in administrative legal relations, in order to apply the original rule of protecting trust to the acts of an administrative agency, first, the administrative agency must issue the public opinion that is the subject of trust to the individual; second, the administrative agency’s public opinion that is the subject of trust to the individual is justifiable and trust to the individual is not attributable to the individual; third, the individual should have trusted the opinion and committed any act based on the individual’s trust; fourth, by the administrative agency’s disposition contrary to the above opinion list, the administrative agency should have conducted any act contrary to the above opinion list, thereby infringing the individual’s trust interest. Any administrative disposition is against the principle of protecting trust unless it is likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2004Du46, Jun. 9, 2006).

(B) According to the evidence evidence No. 4, it is acknowledged that when imposing comprehensive real estate holding tax on September 3, 2003 through the explanatory material of the title " how the Financial Economic Department changed the title of real estate holding tax?" the amount of the property tax imposed on the local government is deducted from the total amount of the property tax imposed on the local government when imposing comprehensive real estate holding tax on September 3, 2003. Therefore, it is recognized that there is no possibility of unconstitutionality since the amount of the property tax on the portion on which the comprehensive real estate holding tax is imposed after the enforcement of the amended Act is deducted from all the amount of the property tax imposed on the portion on which the comprehensive real estate holding tax is imposed after the enforcement of the amended

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.