Early High Court Decision 2009J0348 (Law No. 96.03)

Where one house and land annexed to another house are owned together, the liability to pay detailed taxes;

In the event that one house and land annexed to another house are owned, the comprehensive real estate tax credit benefits shall be excluded, but it shall be possible to start with the portion of the tax liability in 2009.

The contents of the decision shall be the same as attached.

1. Of the instant lawsuit, the Defendant’s claim for revocation of the part exceeding KRW 3,523,410 of the disposition imposing global income tax on the Plaintiff on November 20, 2008 and exceeding KRW 704,680 of the disposition imposing special rural development tax of KRW 81,750 is dismissed.

2. The plaintiff's remaining claims are dismissed.

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

On November 20, 2008, the Defendant rendered a second decision on the imposition of comprehensive real estate holding tax for the year 2008 and KRW 811,750 for agricultural and fishing villages and special tax for the agricultural and fishing villages.

1. Details of the disposition;

가. 원고는 2008년도 종합부동산세 과세표준일인 2008. 6. 1. 현재 ① 서울 ●●구 ☆☆동 316 ★★아파트 6동 604호(이하 '이 사건 아파트')와 ② 충북 청원군 ○○면 ◎◎리 467-1 임야 899㎡, 같은 군 ◇◇면 ◎◎리 353-5 대 471㎡, 같은 리 358-3 대 435㎡(이 하 위 각 토지를 '이 사건 각 토지')의 소유자이다.

나. 이 사건 각 토지 지상에는 각각 김◆◆, 김□□, 정■■ 등 소유의 주거용 건축물 이 있고(이하 '이 사건 각 건축물'), 이에 따라 피고는 이 사건 각 토지와 그 지상 건축물 에 대하여 부과되는 지방세법상 주택분 재산세를 이 사건 각 토지와 그 지상 건축물의 시가표준액 비율로 안분한 비율로 원고에게 부과하여 왔다.

C. The defendant imposed 4,058,780 won of comprehensive real estate holding tax and 811,750 won of special rural development tax under the former Gross Real Estate Holding Tax Act and 811,750 won of comprehensive real estate holding tax under the former Gross Real Estate Holding Tax Act, which is subject to property tax by the plaintiff in Korea as of November 20, 208 (amended by Act No. 9273, Dec. 26, 2008; hereinafter the same shall apply) and paid 535,370 won of comprehensive real estate holding tax and 107,070 won of special rural development tax and 644,890 won of total amount of 107,070 won to the plaintiff on January 23, 2009 as the rate applied to the tax base due to the amendment of the former Gross Real Estate Holding Tax Act (hereinafter referred to as the "each disposition in this case").

D. On February 2, 2009, the Plaintiff dissatisfied with each of the instant dispositions and filed a tax appeal with the Tax Tribunal on February 2, 2009, but was dismissed on June 3, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 3-1 to 4, Eul evidence 1, 2, and 3, the purport of the whole pleadings

2. Whether the litigation of this case is legal; and

A. The part seeking the revocation of the part of the disposition that exceeds each of the dispositions of this case among the respective dispositions stated in the instant lawsuit is unlawful as there is no benefit in the lawsuit, as seen in the background of the instant disposition.

B. Examining the legitimacy of the remaining parts of the instant lawsuit, a lawsuit seeking re-determination of an administrative disposition is not allowed under the current Administrative Litigation Act, as a lawsuit seeking performance of obligations (see Supreme Court Decision 97Nu3200, Sept. 30, 1997). However, this may be prejudicial to the purport of seeking revocation of each disposition of the instant case, and thus, the decision on the merits thereof should be made.

3. Whether the dispositions of this case are proper.

A. The plaintiff's principal

If the owner of a house and its appurtenant land are different, property tax calculated on the entire land and its appurtenant land is imposed on the owner of the land in proportion to the price of the land and the price of the building, but property tax is imposed on the owner of the appurtenant land in proportion to the proportion of the price of the land and the price of the building. However, the owner of the appurtenant land is the owner of the land and the owner of the appurtenant land is the owner of the land in the Income Tax Act. In addition, according to the Comprehensive Real Estate Tax Act amended on May 27, 2009, the owner of the land together with a single house and another house is regarded as one house for one household. Therefore, it is unlawful for the Defendant to consider each of the instant land as a house under the Comprehensive Real Estate Tax Act and to impose the comprehensive real estate holding tax on the house, and to grant tax credit for the Plaintiff’s excess

(b) Related statutes;

It is the same as the entry of the attached statutes.

C. Determination

In accordance with Article 2 of the former Real Estate Tax Act, Article 180 of the former Local Tax Act (amended by Act No. 9774 of Jun. 9, 2009; hereinafter the same) and Article 2 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009), "house which is subject to taxation under the former Comprehensive Real Estate Tax Act, which is the basis of each disposition of this case, refers to all or part of a building with a structure of enabling members of a household to carry on an independent residential life for a long time and its appurtenant land, and it does not mean only the above part of the building site. In addition, Article 7 of the former Comprehensive Real Estate Tax Act provides that "person liable to pay property tax under Article 183 of the former Local Tax Act" and Article 183 (1) of the former Local Tax Act provides that "property tax under Article 183 of the former Local Tax Act shall be imposed on the building and appurtenant land of the house."

In a systematic and comprehensive interpretation of the relevant provisions of the former Gross Real Estate Tax Act and the former Local Tax Act, even if the owner of a building and appurtenant land are different, the portion corresponding to the ratio of the standard market price of the portion owned by him/her among the publicly announced prices of the housing should be added to the calculation of the standard market price of the comprehensive real estate holding tax on the housing. In the determination of one house for one household, the person holding each land of this case, other than the apartment of this case, on which the property tax on the housing is levied, shall not be deemed as one house for one household, and such interpretation shall not be deemed as a expanded interpretation

Meanwhile, Article 8(4) of the Gross Real Estate Tax Act amended by Act No. 9710 on May 27, 2009 provides that one household shall be deemed one house in cases where a person owns a house and land annexed to a house different from that of a house. However, this provision is a newly established provision for the mitigation of a taxpayer’s tax burden, and its scope of application is applied from the establishment date of the tax liability in 2009, and thus, it does not apply to each of the instant dispositions regarding the Gross Real Estate Tax for the year 2008. Thus, each of the instant dispositions is not unlawful under the above revised provision.

The plaintiff's principal is well-grounded, and a disposition to dismiss the case is legitimate.

4. Conclusion

Of the instant lawsuit, the part concerning Paragraph (1) of this case is unlawful and dismissed, and the remainder of the Plaintiff’s claim is dismissed as it is without merit.