2019Guhap61527 Revocation of revocation of acquisition tax rectification

It is as shown in the separate list of the plaintiffs.

[Judgment of the court below]

Hanam Market

Government Law Firm Corporation, Attorneys Choi Jin-jin and Kim Jong-ho, Counsel for the defendant-appellant

August 22, 2019

oly 10, 2019

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

The defendant's rejection disposition against the plaintiffs as stated in the attached list 1 against the plaintiffs shall be revoked.

1. Details of the disposition;

A. On April 18, 2018, the Plaintiffs acquired each sectional building of the Hanam-si apartment (hereinafter referred to as “instant real estate”). The Plaintiffs reported and paid acquisition tax to the Defendant by applying the tax rate under Article 11(1)7 (b) of the former Local Tax Act (amended by Act No. 16194, Dec. 31, 2018; hereinafter referred to as the “former Local Tax Act”) (40/1,00). (b) On June 18, 2018, the Plaintiffs asserted that the instant real estate was a business facility on the building ledger (the apartment), while the instant real estate was used as a multi-unit house (the apartment), and thus, the acquisition tax rate of 11(1)8 (hereinafter referred to as the “instant provision”) of the former Local Tax Act should be applied as the “housing at the time of acquisition is less than KRW 600,000,000.”

C. As indicated in the separate sheet No. 1, the Defendant rendered a disposition rejecting an application for rectification of acquisition tax (hereinafter collectively referred to as "each rejection disposition of this case") against each of the plaintiffs, on the ground that the instant real estate does not fall under the housing stipulated in the instant provision.

D. On June 30, 2018, the Plaintiffs filed a tax appeal seeking revocation of each of the instant refusal dispositions with the Tax Tribunal, but the Tax Tribunal rendered a decision to dismiss the claims on November 23, 2018. The grounds for recognition were without any dispute, entry in Gap 1 through 3 (including the number of numbers), and the purport of the entire pleadings.

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The Plaintiffs acquired the instant real estate for the purpose of using it as a house. Whether it constitutes a “house” stipulated in the instant provision ought to be determined in consideration of the purpose of acquiring real estate.

Unlike this, each of the instant refusal dispositions, which held that the instant real estate does not constitute a “house” under the instant provision, is unlawful against the principle of equality and substance over form principle.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) As to the interpretation of the Act on Taxes and Charges, it shall be interpreted in accordance with the legal text, barring special circumstances, in the absence of the requirements for imposition or exemption, and it is not permitted to expand or analogically interpret without reasonable grounds, and in particular, it accords with the principle of fairness to strictly interpret the provision that is clearly considered as a preferential provision among the requirements for reduction or exemption (see Supreme Court Decision 2001Du731, Apr. 12, 2002).

2) Article 11(1)7 (b) of the former Local Tax Act provides that acquisition tax rate shall be 40/1,000 in cases of acquiring real estate other than farmland by sale. The instant provision provides that acquisition tax rate shall be 10/1,000 in cases of acquiring a house with a value not exceeding 60 million won as at the time of acquisition due to a floating transaction as an exception to the application of the above acquisition tax rate, and that “house” means a house under Article 2(1) of the Housing Act, which is entered into a house in the building ledger under Article 38 of the Building Act, and is used for residential purposes and land annexed thereto. The instant provision on acquisition tax rate for a commercial transaction of housing constitutes a preferential provision for Article 11 subparag. 7 (b) of the former Local Tax Act. Therefore, the Plaintiffs’ assertion to the effect that the purpose of acquiring real estate should be considered in the interpretation of the instant provision is without merit.

3) The instant real estate falls under the quasi-housing stipulated in subparagraph 4 of Article 2 of the Housing Act, which is a building that mainly conducts business among business facilities prescribed in Article 3-5 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 29136, Sept. 4, 2018; hereinafter the same shall apply) and subparagraph 14 of attached Table 1, which is a building that enables accommodation and lodging in some subdivisions among the subdivisions sold or leased (Article 4 subparagraph 4 of the Enforcement Decree of the Housing Act; Article 1 subparagraph 14 (b) 2 of attached Table 1 of the former Enforcement Decree of the Building Act). The fact that the use of the instant real estate on the building ledger falls under the quasi-housing stipulated in subparagraph 4 of Article 2 of the Housing

4) Thus, since the real estate of this case does not correspond to the "house" stipulated in the provisions of this case, the plaintiffs' assertion based on this premise is without merit. Each rejection disposition of this case which rejected the plaintiffs' request for correction is legitimate.

3. Conclusion

The plaintiffs' claims are dismissed in entirety for lack of reasonable grounds.

Awards and decorations by the presiding judge;

For the establishment of judges:

Judges Kang Jin-jin