Seoul Administrative Court 2012Guhap23679 ( November 02, 2012)

It can not be said that the purpose of the amendment was to reduce or change the scope of the amount of property tax deducted.

There is no change in the basic purport of deducting the amount of property tax imposed overlapping with the amount of comprehensive real estate tax for the portion exceeding the standard amount of taxation. Thus, even if the method of calculating the amount of property tax to be deducted was changed from the previous formula of Enforcement Decree to the formula of Enforcement Decree, it cannot be deemed that the purpose of such amendment was to reduce or change the scope of

The calculation of the amount of property tax deducted from the closing tax for housing portion under Article 4-2 of the Enforcement Decree of the Comprehensive Real Estate Tax

2012Nu3648 Revocation of the imposition of comprehensive real estate holding tax, etc.

1.A.C. 2.CC.D. 4.S.B.

1.★★세무서장, 2☆☆세무서장, 3.○○세무서장

Seoul Administrative Court Decision 2012Guhap23679 decided November 2, 2012

October 7, 2015

November 4, 2015

1. The part of the judgment of the first instance against Plaintiff AA and BB shall be revoked.

피고 ○○세무서장이 2011. 11. 16. 원고 AA 주식회사에 대하여 한 2011년 귀속 종합부동산세 000원，농어촌특별세 000원의 부과처분 중 종합부동산세 000원, 농어촌특별세 000원을 초과하는 부분 및 피고 ★★세무서장이 2011. 11. 16. 원고 주식회사 BB에 대하여 한 2011년 귀속 종합부동산세 000원, 농어촌특별세 000원의 부과처분 중 종합부동산세 000원，농어촌특별세 000원을 초과하는 부분을 각 취소한다.

2. Upon the Plaintiff’s request made by CC, Co., Ltd. and DD, Defendant ○○ Head of the tax office cancels each of the following parts: (a) on January 12, 2015, the amount exceeding KRW 000 of the comprehensive real estate holding tax for 201, KRW 00 of the comprehensive real estate holding tax for 00, and KRW 000 of the special rural development tax, and KRW 00 of the comprehensive real estate holding tax for 00, and KRW 00 of the special rural development tax for 200; and (b) Defendant ○○ Head of the tax office of Do, on May 1, 2013, the amount exceeding KRW 00 of the comprehensive real estate holding tax for 201, KRW 00 of the special rural development tax for 00

3. The total costs of the lawsuit shall be borne by the Defendants.

The order is as follows (However, the plaintiffCC, and D, are dissatisfied with the disposition of imposition as of November 16, 201 at first, and the above claim was changed in exchange following the disposition of increase and correction after the appeal of this case).

1. The part citing the judgment of the court of first instance

The reasoning of this court's judgment is as follows, except for the dismissal of the following among the judgment of the court of first instance and the replacement of the 8th through the 16th end to the 16th end, and therefore, it is identical to the reasoning of the court of first instance. Thus, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of

○ To delete the 15 pages 2, 15 pages.

○ 2 pages 16,17 of the former Gross Real Estate Tax Act (amended by Act No. 9273, Dec. 26, 2008; hereinafter referred to as the “former Gross Real Estate Tax Act”) provides that “The Comprehensive Real Estate Tax Act (amended by Act No. 10789, Jun. 7, 201; hereinafter referred to as the “Revised Real Estate Tax Act”) shall be construed as “the Comprehensive Real Estate Tax Act (However, since the amendment by Act No. 9273, Dec. 26, 2008; hereinafter referred to as the “Revised Act”)”.

○○ 3 pages 1 through 3, the former Enforcement Decree of the Gross Real Estate Tax Act (amended by Presidential Decree No. 21293, Feb. 4, 2009; Presidential Decree No. 23356, Dec. 8, 201; hereinafter referred to as the “amended Enforcement Decree”) is “Enforcement Decree of the Gross Real Estate Tax Act (Provided, That since the amendment by Presidential Decree No. 21293, Feb. 4, 2009; hereinafter referred to as the “Enforcement Decree of the amended Enforcement Decree”)”, “The issues of this case are basically the same after the amendment by Presidential Decree No. 21293, so the Enforcement Decree after the amendment is maintained.”

1. The phrase "the comprehensive real estate holding tax" is the same as the phrase "the disposition of this case (comprehensive real estate holding tax)" (the plaintiffCC Co., Ltd. and D Co., Ltd. reflects the following increase, reduction, and reduction)."

○ 3 pages 13, 14 are as follows.

D. On January 12, 2015, the head of the tax office of ○○○ Tax office revised the comprehensive real estate holding tax for year 201 to 00 won, and the special rural development tax for 000 won, respectively. The head of the tax office of △△△ District Tax office, on May 1, 2013, adjusted the comprehensive real estate holding tax for 201 to 000 won, respectively, for 00 won for 200 won for the Plaintiff Company D, and adjusted the special rural development tax to 00 won for 3 times again (for the above Plaintiffs, the remaining portion of the tax amount in each of the above adjusted measures, for the remaining Plaintiffs, including the original disposition of November 16, 201, and each of subparagraphs 1, 2, 7, 8, 1, 2, 2, 2, 2, and 3). The purport of each pleading is as follows.

As shown in the attached Form 4 of the decision of the court of first instance, the part of the plaintiffCC and the DD Co., Ltd. in the attached Form of this decision is dismissed.

2. The judgment of this Court

A. Details and purport of the amendment;

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 pursuant to 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, enacted by Act No. 7328 on January 5, 2005, made it the comprehensive real estate holding tax base minus a certain amount of tax base from such aggregate amount of

However, since the application rate of the above Local Tax Act was determined as a phased increase each year, it was difficult to flexibly adjust the fair level of tax burden, so the Act was amended by Act No. 7843, Dec. 31, 2005; and the Comprehensive 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 to 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 above Local Tax Act also adopted a fair market value ratio of 10/10 of the annual application rate of property tax and comprehensive real estate holding tax so that the fair market value ratio of 0/10 of the property tax and comprehensive real estate holding tax can be determined as the fair market value ratio of 10/70 of the total real estate holding tax and 20/10 of the total real estate holding tax (the statutory statutory standard value ratio of 20/100 of the total real estate holding tax).

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 equity in tax burden on real estate holding and to stabilize the price of real estate by first imposing property tax, which is a local tax, at a low rate on a person holding property subject to taxation, at a higher rate on a person who holds real estate in excess of a certain standard amount of taxation by adding up all the taxable items in Korea. 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 was to 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 property tax amount exceeding the standard tax rate of property tax calculated in accordance with the formula.

After that, on February 4, 2009, Article 4-2, Article 5-3 (1) and (2) of the former Enforcement Decree of the Gross Real Estate Tax Act was amended by Presidential Decree No. 21293, the method of calculating the amount of property tax, namely, the formula of revising the amended Enforcement Decree, that is, the total amount of tax imposed as property tax on the property tax on housing, etc. 】 the amount equivalent to the property tax calculated as the standard tax rate of property tax on the tax base on housing ± the amount equivalent to the property tax calculated as the standard tax rate of property tax on housing, etc. ±the amount equivalent to the property tax calculated as the standard tax rate of property tax on housing, etc. ±the purpose of revising the calculation method

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 of the previous Enforcement Decree, has been changed to the “tax base of a house, etc.” as stated in the molecular of the previous 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 on the portion exceeding the standard amount of taxation. Thus, even if the method of calculating the amount of property tax was changed to the formula of 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 deducted (see, e.g., Supreme Court Decision 2012Du29

(b) Method of calculating property tax deduction pursuant to the amended 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-tax base amount)" 】 The amount of the comprehensive real estate holding tax on the same portion is calculated based on the formula of "property fair market price ratio" 】 The amount of the comprehensive real estate holding tax on the same portion is calculated based on the formula of "(public notice price-tax base amount)" x the 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 fair market price of the comprehensive real estate holding tax 】 (public notice price-tax base amount) 】 The portion on which the property tax and the fair market price ratio of the comprehensive real estate holding tax are imposed concurrently. In addition, this part is not necessary to consider when calculating the amount of property tax deducted on the ground that the comprehensive real estate holding tax is imposed.

In full view of these points, the amount of property tax to be deducted in accordance with the formula of the amended Enforcement Decree shall be calculated according to the formula of "(officially announced price-taxable standard amount) 】 The smaller of the fair market price ratio of property tax and comprehensive real estate holding tax 】 property tax rate 】 The fair market price ratio of property tax is less than the fair market price ratio of comprehensive real estate holding tax in 201. Therefore, in the case of comprehensive real estate holding tax in 201, the amount of property tax to be deducted from the amount of comprehensive real estate holding tax, such as housing, should be calculated according to the formula of

Meanwhile, in a case where the Ministerial Ordinance, such as the Enforcement Rule, which delegates part of the requirements of administrative disposition to the Ordinances, has been prescribed by the Ordinance, the provisions of the Ministerial Ordinance shall also be binding on the citizens. However, in a case where the Ordinances amended the matters that meet the requirements of disposition prescribed by the Ordinance without delegation of the Act and subordinate statutes without delegation of the Act and subordinate statutes, the provisions of the Ministerial Ordinance shall be deemed to have the nature of administrative orders, which are applied within the administrative organization, and shall not have any external binding force on the public. Therefore, even if a certain administrative disposition violates the provisions of the Enforcement Rule with no legal nature, the disposition shall not be deemed unlawful merely because it does not violate the 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 by the said Rules, but shall not be determined based on the relevant provisions of the Acts and subordinate statutes with binding force on the general public (see, e.g., Supreme Court Decision 2011Du10584, Sept. 12, 2013).

C. Whether each disposition of this case is unlawful

Therefore, the Defendant’s calculation of the amount of property tax deducted by applying the formula of the amended Enforcement Rule to each disposition of this case is contrary to the purport of the amended Enforcement Decree. Of each disposition of this case, the portion that exceeds the reasonable amount of tax calculated by lawful calculation method (each of the “reasonable tax amount” as stated in the table of the attached Form 4 calculation statement and the amount of special rural development tax) is unlawful.

3 Conclusion

The part of each of the dispositions of this case in excess of the above legitimate amount is unlawful, and the judgment of the court of the first instance is revoked with respect to Plaintiff AA Co., Ltd., and the judgment of the court of first instance with respect to Plaintiff C Co., Ltd., and D Co., Ltd., and upon the exchange change with the court, the part exceeding the above legitimate amount is revoked.