Supreme Court-2012-Du-23563 (Law No. 15, 07.09)

Seocho 2010Ch2413 (Law No. 9.20, 2010)

The calculation of the property tax to be deducted by applying the formula in the Enforcement Rule is against the purpose of the Enforcement Decree formula.

The amount of property tax to be deducted according to the formula in the Enforcement Decree of the instant case 】 (Public notice price - the standard amount of taxation) 】 the smaller of the fair market price ratio of property tax and comprehensive real estate holding tax 】 the property tax rate.

Article 9 of the Gross Real Estate Tax Act

2015Nu1436 Revocation of revocation of revocation of correction

AA Stock Company

AA Head of the Tax Office

[Attachment]

Supreme Court Decision 2012Du23563 (Supreme Court Decision 2015.07.09)

October 14, 2015

November 25, 2015

1. Revocation of a judgment of the first instance;

2. The revocation of a disposition rejecting correction of the comprehensive real estate holding tax in 2009 and the special tax for rural development tax of 00 million won by the head of AA Tax Office on April 14, 2010 against AA Stock Company shall be revoked.

3. All costs of the lawsuit shall be borne by the director of the AA Tax Office.

The same shall apply to the order.

1. Details of the disposition;

A. On December 15, 2009, AA Co., Ltd. owned 00,000 m2,000 m2,000 m2,000 m2,000 m2,000 and 000 m2,000 m2,000 m2,000 m2,000 m2,0000 m2,000 and 0,0000 m2,000 m2,000 as of June 1, 2009 to the head of the AA Tax Office on December 15, 2009, he/she voluntarily reported and paid the comprehensive real estate tax for the year of 200,00 m2,00 m2,000 m2,000 and 000 m2,000 m2,000 m2,000.

B. In calculating the amount of property tax to be deducted in calculating the amount of comprehensive real estate holding tax as above, AA stock company calculated the amount of property tax to be deducted by calculating the amount of property tax according to the formula prescribed in the summary of preparation in attached Form 3 of Article 5(2) of the Enforcement Rule of the Comprehensive Real Estate Holding Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 102 of September 23, 2009) (hereinafter referred to as “instant formula in the Enforcement Rule”), the amount of property tax to be deducted by calculating the amount of property tax according to the formula prescribed in attached Form 3(2)

C. On February 26, 2010, AA Co., Ltd. filed a claim for the reduction or correction of the property tax deduction method under the above B on the grounds that the property tax deduction method under the above B was wrong on the grounds as indicated in the following paragraph 2(a) and the amount of tax on legitimate property tax is KRW 0,000,000,000,000,0000,0000,000,000,000,000,000,000,000,000,000. However, on April 14, 2010, A Co., Ltd made a disposition to refuse the above request for correction (hereinafter “instant disposition”).

[Ground of recognition] Facts without any dispute, Gap 1 to 3 evidence, and Eul 3 evidence (including family number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

"1) Articles 9(3), 14(3), and 14(6) of the former Gross Real Estate Tax Act, Article 4-2 and 5-3(1) of the former Enforcement Decree of the Gross Real Estate Tax Act, and Article 5-3(2) of the former Enforcement Decree of the Gross Real Estate Tax Act stipulate that the amount of taxes imposed as property tax shall be deducted from the amount of taxes imposed as property tax on the same taxable object in calculating the amount of comprehensive real estate tax. However, the issue of double taxation imposing property tax and comprehensive real estate tax on the same taxable object is being adjusted. However, if Article 4-2 and Article 5-3(1) and (2) of the former Enforcement Decree of the Gross Real Estate Tax Act do not adjust the issue of double taxation, the amount equivalent to property tax calculated as the standard tax rate for property tax on the land, which is the combined or separate aggregate taxable object, should be interpreted as the "amount equivalent to property tax on the land, which is the aggregate real estate price x market price ratio of the comprehensive real estate tax, which is unconstitutional or constitutional."

(b) Related statutes;

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

C. Determination

1) Details and purport of the amendment of relevant laws and regulations

In order to realize the tax base, the Local Tax Act amended by Act No. 7332 on January 5, 2005 requires that the property tax base should be based on the publicly notified price under the Public Notice of Values and Appraisal of Real Estate Act, but the property tax base should be calculated according to the annual application rate of the publicly notified price in order to ease the rapid tax burden following the introduction of a new system, and the Comprehensive Real Estate Holding Tax Act enacted by Act No. 7328 on January 5, 2005 requires that the amount obtained by deducting the specified amount of tax base from the aggregate amount of the property tax base should be

However, since it was difficult to flexibly adjust the above application ratio to a reasonable level of tax due to the determination of the annual increase of the above ratio, the Local Tax Act amended by Act No. 7843, Dec. 31, 2005; and the Gross Real Estate Tax Act amended by Act No. 9273, Dec. 26, 2008, introduced a fair market value ratio system applicable to property tax and comprehensive real estate holding tax, respectively, to determine the rate to reflect in a certain tax base within a certain scope, taking into account the real estate market trend, financial conditions, etc. However, Article 5 of the Addenda of the Local Tax Act provides for the fair market value ratio of 10 percent of the annual application ratio of property tax and comprehensive real estate holding tax and 208 (wholly amended by Presidential Decree No. 2010, Feb. 6, 2009). Accordingly, the fair market value ratio of land under Article 8(1), 13, and 208(1) of the former Enforcement Decree of the Local Tax Act, which are delegated by Presidential Decree No. 2010 percent of the total Real Estate Tax Act.

On the other hand, the purpose of the comprehensive real estate holding tax introduced by the corporate restructuring formula on January 5, 2005 is to enhance equity in property holding by imposing property tax, which is a local tax, at a lower rate, at a higher rate, on those holding real estate in excess of a certain standard amount of taxation, and to promote real estate price stability by adding the property tax, which is a national tax, at a higher rate. As such, since the property tax and comprehensive real estate holding tax are taxes based on the same capacity as holding property subject to taxation, the Act on Real Estate Holding Tax, which is enacted by Act No. 7328, Jan. 5, 2005, provides that the amount of tax imposed as property tax should be deducted from the calculated tax amount of comprehensive real estate holding tax, and the purpose of Article 4-2, Article 5-3 (2) and (2) of the former Enforcement Decree of the comprehensive real estate holding tax (amended by Presidential Decree No. 21293, Feb. 4, 2009).

"2) The amount of property tax for the portion exceeding the standard amount of taxation of the comprehensive real estate holding tax deduction under the instant formula constitutes the portion on which property tax is imposed. In addition, since the amount of property tax for the portion which exceeds the standard amount of taxation of the comprehensive real estate holding tax deduction under the instant formula is calculated based on the formula of "(public notice price - the standard amount of taxation - the standard amount of taxation) x the fair market price of the comprehensive real estate holding tax," and the amount of the comprehensive real estate holding tax for the same portion is calculated based on the formula of "the fair market price of the comprehensive real estate holding tax". However, this two amounts refer to the portion on which 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 fair market price of the comprehensive real estate holding tax" (the standard amount of taxation - the fair market price of the comprehensive real estate holding tax) - the fair market price of the comprehensive real estate holding tax should be calculated on the ground that the fair market price of the comprehensive real estate holding tax is excluded from the fair market price.

In addition, Article 16(3) of the former Gross Real Estate Tax Act and Article 8(2) of the former Enforcement Decree of the Gross Real Estate Tax Act delegate only to the Enforcement Rule to determine the procedural matters for reporting the Comprehensive Real Estate Tax.

Since Article 5(2) of the Enforcement Rule does not delegate to determine the substantive contents related to the assessment of the amount of property tax deducted from the combined real estate tax, even if Article 5(2) of the Enforcement Rule prepares a form for filing a comprehensive real estate holding tax return and states the error in the formula of the instant Enforcement Rule, which is the wrong formula in the summary of preparation in attached Form 3 (2), it shall be deemed that there is no effect of binding upon the general public or the court (see Supreme Court Decision 2012Du2986, Jun. 23, 2015).

As seen earlier, the amount of property tax deducted from the amount of comprehensive real estate holding tax, such as housing, must be calculated in accordance with the enforcement decree of the instant case, and thus, it was calculated in accordance with the instant enforcement

The instant disposition cannot be deemed lawful solely on the ground that it was lawful.

3) Whether the instant disposition is lawful

In the end, if comprehensive real estate holding tax in 2009 is calculated according to lawful calculation method, the amount of tax to be paid is as stated in the column of "amount of tax to be paid on the basis of the justifiable tax on the 2009 attached Table 1." Therefore, the amount of tax to be paid on the basis of the 2009 total real estate holding tax in 200, which was initially reported and paid by AA Co., Ltd., and the amount exceeding the gross real estate holding tax of 0,000,000 (tactation of less than 10,000 won) and the amount of special rural development tax (X special rural development tax of 200,000,000 won, and less than 10,000 won) should be corrected. Accordingly, the correction of the above excessive portion without further review of the remaining arguments by A Co., Ltd. is justifiable, and the disposition of this case which rejected a request for correction is unlawful."

Therefore, the claim of the AA Company shall be accepted with due reason, and the judgment of the first instance is unfair with different conclusions, so the appeal of the AA Company shall be accepted, and it shall be revoked and the claim of the A Company shall be accepted, and it is so decided as per Disposition.