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

2013Guhap19721 Revocation of Disposition of Imposition of Comprehensive Real Estate Tax, etc.

AA Association and 4

Head of Gangnam District Tax Office and 4

November 13, 2015

November 20, 2015

1. A. The portion exceeding the OO of the comprehensive real estate holding tax for the year 2012 imposed on Plaintiff AA on November 16, 2012, and the portion exceeding the OO of the comprehensive real estate holding tax for the special rural development tax and the OO of the special rural development tax for the rural development tax;

B. The portion of the imposition of comprehensive real estate holding tax on November 16, 2012 on Plaintiff BB shopping Co., Ltd., which exceeds the KRW OO of comprehensive real estate holding tax on the imposition of KRW OO of comprehensive real estate holding tax on the imposition of KRW OO of comprehensive real estate holding tax on the special rural development tax and KRW OO of special rural development tax;

C. The portion of the imposition of the comprehensive real estate holding tax on November 25, 2014 by the Head of Central Tax Office, which exceeds the OO of the comprehensive real estate holding tax on the Plaintiff Co., Ltd. on November 25, 2014, and the amount exceeding the OO of the comprehensive real estate holding tax on the special rural development tax and the special rural development tax on the imposition of

D. The portion that exceeds the OO of the comprehensive real estate holding tax for the year 2012 imposed on Plaintiff DD on November 16, 2012, and the amount that exceeds the OO of the comprehensive real estate holding tax for the special rural development tax and the OO of the special rural development tax for the special rural development tax;

E. On November 16, 2012, the part that exceeds the KRW OO of the comprehensive real estate holding tax for the year 2012 imposed on Plaintiff CCC hotel and the KRW OO of the comprehensive real estate holding tax for the special rural development tax and the KRW OO of the special rural development tax for the special rural development tax:

Each cancellation shall be revoked.

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

Cheong-gu Office

As set forth in the text.

1. Details of the disposition;

A. The Defendants were owned by the Plaintiffs as of June 1, 2012, which was the assessment basis date of comprehensive real estate holding tax in 2012.

Comprehensive real estate holding tax and rural special taxation for real estate held in the year 2012 as follows:

The separate tax was imposed (hereinafter referred to as the "disposition of this case").

B. The Defendants calculated the amount of comprehensive real estate holding tax in accordance with Articles 9(3), 14(3), and 14(6) of the Comprehensive Real Estate Holding Tax Act (amended by Act No. 9273, Dec. 26, 2008; hereinafter referred to as the "amended Act") with respect to the disposition of the instant case, while calculating the deducted amount of property tax, the Defendants maintained the same contents as to the instant issue after the amendment by Presidential Decree No. 21293, Feb. 4, 2009; thus, the Enforcement Decree after the amendment of the Comprehensive Real Estate Holding Tax Act (amended by Presidential Decree No. 21293, Feb. 4, 2009; hereinafter referred to as the "Enforcement Rule") x the fair market price of the attached Form 5(2) [Attachment 3] of the Enforcement Rule of the Comprehensive Real Estate Holding Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 102, Sep. 23, 2009; hereinafter referred to as the "Enforcement Rule].

C. The Plaintiffs appealed and filed an appeal with the Tax Tribunal as follows.

was dismissed.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3 (including the number of each branch), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' 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 instant case provide that in calculating the amount of comprehensive real estate holding tax, the amount of tax imposed as property tax shall be deducted on the portion which is the object of the comprehensive real estate holding tax, but the Defendant did not deduct the remaining amount of tax after deducting only the amount of tax calculated by multiplying the amount of property tax imposed on the portion which is the object of the comprehensive real estate holding tax by the fair market price ratio (general real estate holding tax or property tax) based on the calculation method

Therefore, imposing comprehensive real estate holding tax without deducting the amount of property tax partially should be revoked as it violates the principle of no taxation without law or double taxation prohibition.

2) The Ministry of Finance and Economy, on September 3, 2003, stated that when imposing a comprehensive real estate holding tax through the explanatory materials 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 deducted from the total amount of the property tax imposed by the local government, so it is not double taxation, and thus, it did not have any possibility of unconstitutionality. However, only part of the property tax

C. Therefore, the instant disposition should be revoked inasmuch as it violates the principle of trust protection.

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 (amended in whole).

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 of an administrative disposition by Ordinance, according to the delegation of the Ordinance, the provisions of the Ministerial Ordinance shall also be binding on the citizens. However, in a case where the provisions of the Ministerial Ordinance are amended 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, which provides for the criteria for administrative affairs inside the 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 shall not be deemed unlawful merely because it is in violation of the above provisions of the Enforcement Rule, and the disposition shall not be deemed legitimate on the ground that it does not comply with the requirements prescribed in such regulations, but shall not be determined on the basis of the relevant provisions of the Acts 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, it is against the purport of the instant formula in the Enforcement Rule that the Defendant calculated the amount of property tax to be deducted by applying the amended formula in the Enforcement Rule to the instant disposition.

On the other hand, if a reasonable tax amount is calculated by lawful calculation method, it is apparent that the amount of comprehensive real estate holding tax stated in the "amount of tax to be paid" in the separate calculation statement and the amount of special rural development tax accordingly is the amount of comprehensive real estate holding tax stated in the "amount of tax to be paid" in the separate calculation statement.

3. Conclusion

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