Enforcement Decree concerning the calculation of the amount of property tax deducted from the comprehensive real estate holding tax shall not be null and void.

Enforcement Decree concerning the calculation of the amount of property tax deducted from the comprehensive real estate holding tax (the Enforcement Decree amended on November 30, 2015) shall not be deemed invalid.

Articles 4-2 and 5-3 of the Enforcement Decree of the former Gross Real Estate Tax Act

2018Guhap52594 Revocation of Disposition of Imposition of Comprehensive Real Estate Tax, etc.

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00. Head of tax office

August 21, 2018

November 8, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's disposition of comprehensive real estate holding tax in 2016 against the plaintiff**,*,**,**,**,***,*** in the disposition of imposition of KRW *,**,***,** in the disposition of imposition of KRW *,**,* in the special rural development tax in 2016**,***,**,** in the disposition of KRW *,*** in the disposition of imposition of KRW *****,*** in the disposition of KRW *.

1. Details of the disposition;

A. On June 1, 2016, the assessment basis date of comprehensive real estate holding tax, the Plaintiff is a taxpayer of comprehensive real estate holding a taxable object (housing*** case, land subject to general aggregate taxation** case, land subject to separate aggregate taxation** case).

B. On January 2016, ****. The defendant notified the plaintiff of the gross real estate tax*,****, comprehensive cumulative land**, separate cumulative land********,*,**,**,**, special rural development tax*,**,**,**,****.

(c) The defendant is notified by the head of the Gu of the change in the property tax of the plaintiff.***. The increased aggregate land**, separate cumulative land********* on the increased aggregate land in question. The plaintiff, comprehensive real estate holding tax***,**,**,**,**,**,*,**,**,*,**,*** of the special rural development tax * after the increased correction (hereinafter referred to as the "increased correction **,**,****,******,*****,******,**,**,**, the disposition of imposition of the tax of KRW *).

D. The Plaintiff deducteds the amount of tax imposed as property tax under Article 9(3), Article 14(3), and Article 14(6) of the Comprehensive Real Estate Holding Tax Act (hereinafter collectively referred to as “instant disposition”) when the Defendant issued the instant disposition from the amount of tax calculated under the formula (hereinafter referred to as “the formula in the Enforcement Decree of the Dispute”), which is amended by Presidential Decree No. 26670, Nov. 30, 2015; and accordingly, deducteds only the amount calculated under the formula in Article 4-2(1), Article 5-3(1), and Article 5-3(2) of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (hereinafter referred to as “instant formula in the Enforcement Decree of the Dispute”), with the purport that the amount of the instant disposition was calculated excessively; however, the Plaintiff filed an objection on Nov. 30, 2017; but rejected the amount of the instant disposition;* The Tax Tribunal* on Jul. 1, 2017>

[Ground of recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 1

(2) Each entry and the purport of the whole pleading;

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The main issue is that the total amount of the final tax paid by a taxpayer of global income tax as property tax should be deducted from the comprehensive real estate tax. The Supreme Court Decision 2012Du2986 Decided June 23, 2015, Supreme Court Decision 2012Du7073 Decided June 24, 2015, Supreme Court Decision 2012Du23563 Decided July 9, 2015 (hereinafter referred to as "prior Supreme Court Decision") was confirmed. However, contrary to the legislative intent of the aforementioned main provision and the purport of the preceding Supreme Court Decision, the main provision of the revised Enforcement Decree of the Act on November 30, 2015 is that the formula of the previous Enforcement Rule, which provides for deduction as equivalent to the fair market value of comprehensive real estate tax paid by a taxpayer, was legislated, which is the same as that of the previous Enforcement Decree that permits the remainder of the double taxation, and thus, the portion that exceeds the principle of no taxation without law and the purport of the preceding disposition is invalid.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Introduction of comprehensive real estate holding tax and modification of relevant regulations

A) The purpose of the comprehensive real estate holding tax introduced on January 5, 2005 following the reorganization of real estate holding tax system is to enhance equity in tax burden on real estate holding and to stabilize the price of real estate by first imposing property tax on a person who owns real estate at a low rate, which is a local tax, and then imposing comprehensive real estate holding tax at a high rate on a person who holds real estate in excess of a certain standard amount of taxation. As such, the property tax and comprehensive real estate holding tax are taxes based on the same taxable capacity, which is the possession of property subject to taxation, and thus, they were amended by Act No. 7836 of Dec. 31, 2005 and amended by Act No. 9273 of Dec. 26, 2008 (hereinafter referred to as the "Enforcement Decree of the comprehensive real estate holding tax prior to the amendment by Act No. 2009) 】 (the "standard tax rate of property tax prior to the enactment of the Enforcement Decree") calculated by the Presidential Decree of the Property Tax Act concerning the amount exceeding the standard amount of property tax imposed on the relevant property subject matter subject to taxation.

B) Meanwhile, the Local Tax Act amended by Act No. 7332 of January 5, 2005, in order to realize the tax base, requires the assessment standard of property tax to be based on the announced price under the Public Notice of Values and Appraisal of Real Estate Act in order to alleviate a rapid tax burden following the introduction of a new system, and the Gross Real Estate Tax Act enacted by Act No. 7328 of January 5, 2005, decided that the amount obtained by deducting a certain amount of tax base from such aggregate amount of property tax base should be the assessment standard of comprehensive real estate tax. However, since the application rate was determined to be raised each year, it was difficult to flexibly adjust a reasonable level of tax burden because the aforementioned application rate was determined to be raised each year, the Local Tax Act amended by Act No. 7843 of Dec. 31, 2005 and the Gross Real Estate Tax Act amended by Act No. 9273 of Dec. 26, 2008 introduced the property tax rate and the property tax base within the scope of 20.

C) Key legal provisions in the Comprehensive Real Estate Holding Tax Act amended on December 26, 2008 (hereinafter referred to as "the Act")

The latter provision provides that "the amount of tax imposed as property tax on the object of taxation, such as a house, shall be deducted from the amount of comprehensive real estate holding tax on the object of taxation." In the calculation of the amount of comprehensive real estate holding tax, matters necessary for the deduction, etc. of the amount of property tax imposed as property tax on the object of taxation shall be prescribed by Presidential Decree. Since 2009, there is no substantial change until now. Since February 4, 2009, Article 2129 of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act amended by Presidential Decree No. 21293 of Feb. 4, 2009 (hereinafter referred to as the "Enforcement Decree of the amended in 2009") amended by Presidential Decree No. 21293 of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (hereinafter referred to as the "Enforcement Decree of the amended in 209") provides that the method of calculating the amount of property tax to be deducted from the amount of property tax on a house, etc. 】 the amount equivalent to property tax calculated as property tax rate (C) calculated as property tax rate for housing.

Since 2009, the amendment of the Act and the Enforcement Decree of the amended in 2009 was to abolish the annual rate of application, and to revise the calculation method of the property tax to be deducted by calculating the tax base by multiplying the amount exceeding the standard amount of taxation by the fair market price ratio.

2) Prior Supreme Court Decision on the interpretation of the formula in the Enforcement Decree of the 2009 Amendment.

A) The formula of the amended Enforcement Decree of 2009 changed from the "amount equivalent to the property tax calculated according to the standard tax rate of property tax on housing, etc. for the portion exceeding the standard amount of property tax on housing, etc." to the "amount equivalent to the property tax calculated according to the standard tax rate of property tax on the tax on the tax base on housing, etc." In this regard, the tax authority imposed the comprehensive real estate tax by deeming that the formula of the amended Enforcement Decree of 2009 was the formula of Article 5(2) [Attached Form 3 attached Table 2] of the Enforcement Rule of the Gross Real Estate Tax Act at the time of the amendment [Attachment Form 3 attached Table 2] [Attachment Form 3] [Attachment Table 2]] [Attachment [Attachment Table 3]]] [the method of preparation on September 23, 2009] 】 the fair market value ratio of comprehensive real estate holding tax 】 the fair market value ratio of comprehensive real estate holding tax 】 the amount of property tax to be deducted compared with the previous formula of the Enforcement Decree in 2009.

B) However, for the following reasons, the previous Supreme Court held that it cannot be interpreted as the same content as the instant formula in the Enforcement Decree of the 2009 Amendment, which was stipulated in the Enforcement Rule at the time, and as a result, it is necessary to calculate the amount of property tax deducted from the comprehensive real estate holding tax in 2009 in accordance with the formula in the Enforcement Decree before 2009.

① In light of the details and purport of the amendment of relevant provisions, such as the Local Tax Act and the Gross Real Estate Tax Act to abolish the annual application rate system and change the calculation method of property tax to the amount exceeding the amount of tax base by multiplying the amount of tax base by the fair market price ratio of the property tax and the gross real estate tax by the amount of tax base, even though the portion exceeding the amount of tax base, such as a house, listed in the molecular in the previous formula in the Enforcement Decree prior to 2009, was changed to the “tax base of housing, etc.,” 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 amount of tax base. Thus, even if the method of calculating the amount of property tax to be deducted was changed to the formula in the Enforcement Decree prior to 2009, the purport of such amendment cannot

(2) The method of calculating property tax to be deducted in accordance with the formula under the Enforcement Decree of the amended in 2009 shall be as follows:

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 - the standard amount of taxation) 】 the amount of the comprehensive real estate holding tax on the same portion is calculated based on the formula of "fair market price ratio of the comprehensive real estate holding tax" x "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 on the portion of "public notice price - the standard amount of taxation - the fair market price of the comprehensive real estate holding tax" x "(public notice price - the standard amount of taxation - the standard amount of taxation) x the same (public notice price - the standard amount of taxation) x the fair market price ratio of the comprehensive real estate holding tax x the amount on which the comprehensive real estate holding tax is 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 2009.

(3) In cases where the Ordinance of the Ministries, such as the Enforcement Rule, has been prescribed by the Ordinance of the Prime Minister as to some of the requirements for administrative disposition, the provisions of the Ordinance shall also be binding on the citizens. On the other hand, in cases where the requirements for disposition prescribed by the Ordinance of the Ministries are modified without delegation of statutes, and the requirements for disposition prescribed by the Ordinance of the Ministries are not externally binding on the citizens. The amount of property tax deducted from the amount of comprehensive real estate holding tax, such as housing, shall be calculated in accordance with the formula prescribed by the Enforcement Decree of the amended in 2009

3) Amendment to the Enforcement Decree of the Issues

After the previous Supreme Court ruling, Articles 4-2(1) and 5-3(1) and (2) of the Enforcement Decree of the Gross Real Estate Tax Act amended by Presidential Decree No. 26670 on November 30, 2015, which are the main provision, provide that the amount of property tax calculated according to the instant formula (public notice price of housing, etc. - tax base amount) 】 fair market price ratio of comprehensive real estate holding tax 】 fair market price ratio of comprehensive real estate holding tax 】 property tax rate 】 property tax amount deducted from the amount of comprehensive real estate holding tax of housing, etc. according to the relevant legal provisions.

The instant disposition was made by deducting the amount of property tax calculated by applying the key formula of the Enforcement Decree, which is the same as the instant formula.

4) Whether the instant disposition is lawful

In full view of the following circumstances revealed by comprehensively taking account of the facts recognized earlier and the details, structure, legislative purport, amendment history, and reason for the amendment of the relevant Acts and subordinate statutes, the instant formula in the Enforcement Decree provides for calculating the amount of deduction of the amount of property tax as stipulated in the main legal provision according to the purport and content of delegation under the instant legal provision. Therefore, the Plaintiff’s assertion that the instant provision in the Enforcement Decree goes beyond the limit delegated by the main legal provision, and is invalid as it excessively infringes on the Plaintiff’s property right by violating the principle of substantial no taxation, the substance over form principle, and the prohibition of excessive legislation. The instant disposition is lawful.

A) According to the text and text of the relevant legal provision, “the amount of tax imposed as property tax on the amount of housing subject to the relevant comprehensive real estate holding tax shall be deducted from the amount of comprehensive real estate holding tax on housing.” According to this, property tax to be deducted from the amount of comprehensive real estate holding tax is not “the total amount of property tax on housing subject to taxation” but “the amount imposed as property tax on the amount of housing subject to taxation”. The tax base of comprehensive real estate holding tax on housing is “the amount calculated by multiplying the amount obtained by deducting 600 million won from the aggregate amount of published prices of housing by each taxpayer by the fair market price

In other words, according to the provisions of the law of the issue, among property tax imposed on the total value of housing subject to taxation, only "property tax imposed on the tax base of comprehensive real estate holding tax on the housing subject to taxation" is subject to deduction, so in order to calculate the amount subject to deduction, only the amount of property tax imposed on the taxpayer according to the tax base of comprehensive real estate holding tax out of the total amount of property tax on housing subject to taxation, should be specified as subject to deduction, and the formula to seek such deduction is sufficiently expected to be "property tax (A) imposed on the total value of housing x property tax (B) imposed on the tax base of comprehensive real estate holding tax / property tax imposed on the total amount of the comprehensive real estate holding tax / (C) / in relation to the total value of housing / ultimately, this is the same as the revised formula of Enforcement Decree of 2009. In addition, as seen earlier, the tax base of comprehensive real estate holding tax is the amount obtained by deducting 600 million won from the aggregate amount of published value of housing .

Thus, the part of the above formula (B) is the same as the "(public notice price of housing, etc. - tax base amount) 】 fair market price ratio of comprehensive real estate holding tax 】 fair market price ratio of property tax x property tax rate 】 Property tax rate ]" which is the part of the divisible part of the main formula in the Enforcement Decree of the instant case. Thus, the instant formula in the Enforcement Decree can be deemed to provide the correct formula with

B) However, in the case of interpreting the legal provisions of the issue and the formula of the Enforcement Decree of the issue, such as the above A, it is not inconsistent with the judgment of the previous Supreme Court that the interpretation of the formula of the Enforcement Decree of the 2009 Amendment, which is the same as the instant formula of the Enforcement Decree of the Gross Real Estate Tax Act, at the time, is unlawful.

However, the Act amended in 2009 and its Enforcement Decree, which was subject to the judgment of the preceding Supreme Court

In the case of the provisions of the Act and the Enforcement Decree of the Act before 2009, the amount of the property tax imposed on the "tax base (amount of published price - the standard amount of taxation)" multiplied by the annual applicable rate and the "tax rate" shall be deducted from the amount of the property tax imposed on the "tax base (amount of published price - the standard amount of taxation x the fair market price ratio)" after the revision in 2009, and the property tax imposed on the "tax base" after the "tax base (amount of published price - the standard amount of taxation x the fair market price ratio)" shall be deducted from the amount of the property tax after the "tax rate". Under the transition of the taxation system, in accordance with the concept of the "tax base that reflects the fair market price ratio after the revision, the property tax amount calculated as the standard tax rate for the "tax base (B)" has been changed.

Therefore, the Supreme Court held that the legislative intent of the legislator, which restructures a taxation system based on the "fair market price rate", as above, would result in unfavorable changes to taxpayers when interpreting the amended Enforcement Decree of 2009 as it is, was to flexibly operate the tax base according to the trend of real estate market, financial conditions, etc. by allowing the fair market price rate to be reflected in the tax base, and that it was not to reduce or change the scope of property tax deduction from comprehensive real estate holding tax, as the main issue of the previous Supreme Court ruling regarding the revised Enforcement Decree of 2009, the purpose of the interpretation of the amended Enforcement Decree of the Local Tax Act was to clearly calculate the amount of property tax within the scope of the tax base, such as the fair market price and the fair market price of the newly amended Enforcement Decree of the Local Tax Act. However, since the legislative purport of the revised Enforcement Decree of the Act of November 30, 2015, it is also difficult for the legislators to calculate the amount of property tax deduction within the scope of the fair market price and the fair market price of the newly amended Enforcement Decree of the Local Tax Act.

C) The Plaintiff asserts that, when calculating the amount of property tax deducted according to the key Enforcement Decree, since part of the property tax paid by the Plaintiff is not deducted as a result of multiplying the fair market value ratio of comprehensive real estate holding tax by the fair market value ratio, the key formula in the Enforcement Decree of the Act asserts that the amount of property tax paid by the taxpayer on the same taxable object is invalid in violation of the purport of delegation under

However, as seen earlier, the pertinent legal provision provides that the amount of property tax paid shall be deducted from the total amount of property tax paid, not from the total amount of property tax paid, but from the total amount of property tax paid. In other words, the pertinent legal provision itself provides that the amount of property tax imposed on the “amount of tax base reflecting the fair market price ratio”) shall be deducted from the amount of property tax imposed on the said amount.” In other words, the amount of property tax paid on the said portion shall not be deducted from the amount of property tax due to the key formula of the Enforcement Decree. Rather, the key formula of the Enforcement Decree is only providing the correct formula according to the delegation of the pertinent legal provision.

Therefore, with respect to "the tax base amount (including the fair market value ratio)" in the main legal provision

Even though there is a room for asserting that only the imposed property tax should be deducted, it cannot be said that the formula of the Enforcement Decree of the issue in accordance with the purport of delegation is unlawful, so long as the pertinent legal provisions are effective.

D) Furthermore, as alleged by the Plaintiff, it is doubtful whether the portion of the property tax and the comprehensive real estate holding tax overlap can be accurately determined, even though the pertinent legal provision provides that a taxpayer deducts only the amount of property tax imposed on the taxable object subject to comprehensive real estate holding tax by using the “amount of tax base (including the fair market price ratio)” as the basis for the “amount of tax base.” Furthermore, it is questionable as to whether specific legislation that excludes or mitigates taxation of property tax and the comprehensive real estate holding tax may inevitably lead to a policy and technical judgment based on accurate data, by considering the difference between the taxable object and rate of property tax and the comprehensive real estate holding tax, the stability of real estate price, the balanced financing of local finance, and the legislative purpose of the comprehensive real estate holding tax to contribute to the sound development of the national economy, etc. In addition, considering the fact that the method of calculating the amount of property tax to be deducted based on the tax base of comprehensive real estate holding tax such as the pertinent legal provision and Enforcement Decree provision, it does not seem to be unconstitutional and unconstitutional by the Plaintiff’s legal provision or property right provisions.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.