2017Du36953 Revocation of Disposition of Imposing acquisition tax, etc.

Plaintiff (Appointed Party)

The head of Dong-gu in Yananan-si

Daejeon High Court Decision 2016Nu12927 Decided February 9, 2017

June 11, 2020

The appeal shall be dismissed.

The costs of appeal shall be borne by the plaintiff (designated party).

The grounds of appeal are examined (to the extent that the grounds of appeal are supplemented).

1. Case summary

A. On April 19, 2015, the Plaintiff (designated parties, hereinafter referred to as the “Plaintiff”) and the Appointed 2 (hereinafter referred to as the “selected”) purchased 1/2 shares of the Plaintiff (hereinafter referred to as the “the instant building”) for the purpose of running the housing rental business, and around April 19, 2015, the Nonparty registered the ownership transfer of the said land and the instant building on May 26, 2015, with the intention of jointly sharing the ownership of 1/2 shares from the Nonparty, and registered the ownership transfer of the instant building as a multi-family house (hereinafter referred to as the “multi-family house”) on July 14, 2015, the first floor of reinforced concrete structure, the second floor, the second floor, the third floor, the second floor, the second floor, the fourth floor, and the second floor, the second floor, the second floor, and the multi-family house register as a multi-family house. On the other hand, the Plaintiff and the Plaintiff were registered as a rental business operator on July 14, 2015.

B. On May 26, 2015, the Plaintiff and the selector reported and paid the acquisition tax of KRW 43,05,000,000, acquisition tax of the instant building as the tax base of KRW 1,435,000,000, and special rural development tax of KRW 59,90,90, and special rural development tax of KRW 47,954,90,00 (hereinafter “acquisition tax, etc.”) to the Defendant.

C. On June 15, 2015, the Plaintiff and the designated parties refused a request for correction on the ground that “the instant building consists of 18 households in total, so acquisition tax by each household must be calculated, and that acquisition by each household constitutes KRW 600 million shall be applied to acquisition tax rate of 10/1,000.” However, the Defendant refused a request for correction on the ground that “the instant building is a detached house, so the acquisition price by each household is not the acquisition price by each household, but the tax rate should be calculated based on the total acquisition price, as it exceeds KRW 90 million, and thus the acquisition price by each household exceeds KRW 30/1,000” (hereinafter referred to as “disposition rejecting a correction”).

D. On July 10, 2015, the Plaintiff and the Selection: (a) filed an application for rectification, such as acquisition tax, to the effect that “the acquisition tax should be reduced or exempted by applying Article 31(1)1 (hereinafter “instant legal provision”) of the former Restriction of Special Local Taxation Act (amended by Act No. 13435, Jul. 24, 2015; hereinafter the same)” to the effect that “the instant building is registered as a multi-family house on the building ledger; and (b) the instant building does not fall under a multi-family house, and thus, (c) the said application for rectification was rejected on the ground that “the instant building does not fall under a multi-family house and does not fall under the tax reduction or exemption stipulated in the instant legal provision,” and (d) the instant application of the instant legal provision on February 17, 2015 (hereinafter referred to as “disposition refusal of correction”).

A. According to Article 2 subparag. 4 of the Rental Housing Act, where a rental business operator under Article 2 subparag. 4 of the same Act (including the case where he/she is registered as a rental business operator within 60 days from the date of acquisition of real estate for rent) "construction of multi-family housing" in accordance with the former part thereof until December 31, 2015, or where a joint house or officetel is purchased from a building owner for the first time pursuant to the latter part, acquisition tax shall be exempted if the exclusive area of the apartment house or officetel is less than 60 meters. In addition, Article 2 subparag. 3 of the former Restriction of Special Local Taxation Act regarding the definition of "joint house" under Article 2 subparag. 2 of the same Act provides that "a joint house is excluded from a dormitory under Article 2 subparag. 2 of the Housing Act." As such, Article 2 subparag. 3 of the same Act provides that the scope of acquisition tax reduction or exemption is granted to a rental business operator who acquired a rental business operator to promote long-term residential stability by facilitating the construction and sale of rental housing (see the Supreme Court Decision 20. 20. 201.

Meanwhile, Article 2 subparagraph 2 of the former Housing Act (amended by Act No. 13782, Jan. 19, 2016; hereinafter the same) provides that each household which jointly uses all or part of the walls, corridors, stairs, and other facilities of the building “B” as a structure in which each household can carry on an independent residential life within one building, and the type and scope of such house shall be prescribed by Presidential Decree. Article 2 (1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 2744, Aug. 11, 2016; hereinafter the same shall apply) provides that the type and scope of "multi-family house" shall be limited to one house under Article 3-1 (c) [Attachment Table 1] of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 26974, Feb. 11, 2016; hereinafter the same shall apply], which provides for the type and scope of "multi-family house", and Article 3-5 (c] of the apartment house.

Under the principle of tax law, the interpretation of tax laws and regulations shall be interpreted in accordance with the text of the law, barring special circumstances, and it shall not be permitted to expand or analogicalize without reasonable grounds, and in particular, it is also consistent with the principle of tax equity to strictly interpret the provisions that clearly include preferential provisions among the requirements for reduction and exemption (see Supreme Court Decision 2003Du7392, May 28, 2004).

In full view of the language and structure of the aforementioned relevant provisions, the purport of the instant provisions, especially the fact that the former Restriction of Special Local Taxation has a separate definition on the “joint housing” under the former Restriction of Special Local Taxation Act, “multi-family housing exempt from acquisition tax under the provisions of the Act,” the “multi-family housing exempt from acquisition tax under the provisions of the former Enforcement Decree of the

[Attachment 1] An apartment house, tenement house and multi-household house as provided in subparagraph 2 (a) through (c) of attached Table 1, and a multi-household house as provided in Article 3-5 [Attachment Table 1] subparagraph 1 (c) of the former Enforcement Decree of the Building Act shall not be included in multi-family housing unless there are special circumstances.

B. Examining the aforementioned facts in light of the aforementioned legal principles, it is reasonable to view that the Plaintiff and the selected person met the requirements of the multi-family house under subparagraph 1(c) of Article 3-5 [Attachment Table 1] of the former Enforcement Decree of the Building Act and acquired 1/2 shares from the Nonparty by deeming the entire building of this case, which is a multi-family house, as one house, as one house. At the time of its acquisition, the building of this case cannot be deemed to fall under the "multi-family house" under Article 2-1(3) of the former Act on Special Cases Concerning Local Taxation, and it does not fall under the subject of acquisition tax exemption under the legal provisions of this case. In the same purport, the lower court did not err in misapprehending the legal principles as to the "multi-family house" under the legal provisions of this case, since the building of this case is a multi-family house, and it cannot be deemed to fall under the "multi-family house" under the multi-family house corresponding to the multi-family house.

On the other hand, the Supreme Court precedents cited in the ground of appeal by the plaintiff in the ground of appeal are either significant or different cases, which are not appropriate to be invoked in this case, unless the relevant laws and regulations provide a separate definition provision.

3. With respect to the standards and rates for the imposition of acquisition tax (related to dispositions rejecting correction on June 25, 2015);

Based on the reasoning of the original judgment, the lower court determined to the effect that, inasmuch as the Plaintiff and the designated person purchased the instant building at KRW 1,435,00,00,00, and the instant building is a multi-family house constituting a detached house, at least one of the entire acquisition value of the instant building, applying the acquisition tax rate of KRW 1,435,00,000 to 30 of the acquisition tax rate of KRW 1,435,000,00, the total acquisition value of the instant building is 1,435,000, and the calculation of tax amount is consistent with the interpretation of the text of Article 11(1)8 of the former Local Tax Act (amended by Act No. 13427, Jul. 24, 2015). Examining the record in accordance with the relevant legal doctrine, the lower court’s determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine under Article 11(1)8 of the former Local Tax Act.

4. In light of the omission of judgment, a judgment on a party’s assertion and other means of offence and defense should be indicated to the extent that it can be recognized that the disposition is justifiable, and it does not need to be determined as to all the parties’ allegations and means of offence and defense (Article 8(2) of the Administrative Litigation Act and Article 208 of the Civil Procedure Act). Therefore, even if a court’s judgment does not indicate a specific and direct judgment on a party’s assertion, it cannot be said that the omission of judgment is an omission to the extent that it can be known that the assertion was cited or rejected in light of the overall purport of the reasoning of the judgment, even if the judgment was not actually determined, if it is apparent that the assertion would be rejected even if the judgment was not determined, it cannot be said that there was an error of omission of judgment due to the lack of influence on the conclusion of the judgment (see, e.g., Supreme Court Decision 2013Du22482, May 16,

Examining the reasoning of the original judgment in light of the record, the lower court rejected the Plaintiff’s assertion that the exclusion of the apartment house from the object of exemption from acquisition tax, unlike multi-household houses, was unlawful against the principle of fair taxation, should be seen as including the Plaintiff’s assertion that it is unfair to treat the apartment house as a single house in determining the object of exemption from acquisition tax as a single house when newly constructing a multi-household house is the same as that of a multi-household house. However, even if the lower court did not make an explicit determination, it cannot be deemed as having affected the conclusion of the judgment on the ground that the aforementioned assertion by the Plaintiff cannot be accepted, and thus, it cannot be said that there was an unlawful omission in the determination of the lower court. In addition, in applying Article 11(1) Subparagraph 8 of the former Local Tax Act, the lower court did not err by misapprehending the acquisition tax rate based on the total acquisition value of a multi-household house, as long as the instant building falls under a multi-household house, and thus, it should be determined based on the acquisition value of the entire house.

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook

Justices Kim Jae-hyung

Justices Lee Dong-won

Jeju High Court Decision 205No10