2010Du14886 Revocation of Disposition of Imposition of Property Tax

Plaintiff

Head of the Daegu Metropolitan City North Korean Office

Litigation Performers, leaples, Kim Jong-hee

Daegu High Court Decision 2009Du1816 Decided July 2, 2010

July 14, 2011

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. Article 195-2 of the former Local Tax Act (amended by Act No. 9302 of Dec. 31, 2008; hereinafter referred to as the "Act") provides that "the calculated tax amount of the property tax on the property concerned shall be determined by the method as prescribed by the Presidential Decree."

If the amount equivalent to 150/100 of the amount of the property tax on the property in the immediately preceding year which is calculated exceeds 150/100 of the amount equivalent to the property tax on the relevant property, the amount equivalent to 150/100 shall be the amount to be collected in the current year: Provided, That in the case of the house whose officially announced house price in the current year under the provisions of Article 111 (2) 1 is not more than 600 million won, the amount pursuant to the following subparagraphs shall be the amount to be collected in the current year.

In addition, Article 142 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 21480, May 6, 2009; hereinafter referred to as the "Enforcement Decree of the Act") refers to the amount equivalent to the property tax or the amount equivalent to the property tax on the property in the immediately preceding year calculated by the method prescribed by Presidential Decree" in Article 195-2 of the Act, and subparagraph 2 (a) of the same Article provides that "where there is a tax base of the immediately preceding year for the house and building in the relevant year, the amount of property tax shall be calculated by applying the Acts and subordinate statutes and the tax base of the immediately preceding year: Provided, That where there is a property tax on the relevant person liable for tax payment in the immediately preceding year, "where there is no tax base of the house and building in the relevant year due to the new construction, extension, etc. of the house and building, it shall be deemed that there exists the house and building subject to taxation of the relevant year as of the tax base of the immediately preceding year, and where the house and building are determined in accordance with the main item (b).

A. The proviso to item (a) applies to an owner of a neighboring house similar to that publicly announced.

If there is a significant difference in the amount of property tax levied in the immediately preceding year, it shall be the amount equivalent to the amount of property tax calculated in consideration of the amount of the property tax (hereinafter referred to as "Article 142 subparagraph 2 (d) of the Enforcement Decree of the Act").

As above, Article 195-2 of the Act provides for the maximum amount of property tax in order to prevent tax burden from rapidly increasing as the method of calculating the tax base of property tax is changed from the cost-oriented method to the market price method from 2005 to the cost-oriented method. In applying the above maximum amount of property tax, the provision of this case was newly established to maintain equity in taxation between the existing house-oriented method and the newly constructed and extended house to which only the market price method is applied in the previous cost-oriented method is applied. In previous cost-oriented method, the market price of the building is not properly reflected in the tax base. Considering that the previous cost-oriented method has influenced the tax base by the size, size, form, structure, location, and the number of years elapsed, the officially announced house price cited as the method of determining the "a similar neighboring house" is merely an example, and whether the provision of this case constitutes "a similar neighboring house" should be determined in consideration of similarity not only the officially announced house price, but also the size, size, structure, location, progress, unit area per unit, etc. (see Supreme Court Decision 2012Du484.).

2. According to the reasoning of the lower judgment, the lower court cited the first instance judgment, and ① the Plaintiff on December 20, 2007.

In light of the newly-built 20, 420, 5, 169, 84, 272, 427, 27, 200, 200, 200, 200, 200, 200, 200, 200, 300, 200, 200, 200, 200, 200, 30, 200, 200, 30, 40, 200, 7, 200, 200, 20, 200, 20, 6, 300, 200, 20, 6,000, 7,000, 7,000, 10,000, 6,000, 2,000, 2,000, 2,00.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the judgment of the court of first instance as cited by the court below and the records of this case, ① The above 2-year 00 won and the above 0-year 200 won and the 0-year 70-year 200-year 50-year 70-year 80-year 60-year 70-year 80-year 20-year 60-year 200-year 70-year 60-year 70-year 200-year 70-year 200-year 70-year 70-year 70-year 2007 5, total 200-year 15, 200-year 20-year 15, 200-year 15, 200-year 74, 207-7, 105-year 7, 105-year 70-year 70-year 205.

According to the above facts, the officially announced price, the exclusive use area, and the unit area market price of Youngnam National Housing are similar to the instant housing. However, despite the rapid increase in the value of Youngnam National Housing, due to the application of the maximum property tax, the rate of taxation on the amount of property tax calculated in the year 2007 is very low, and there is a substantial difference between 66,960 won and 150,630 won, which are the amount equivalent to the property tax calculated by applying the law in 2007 and the tax base amount, etc. on the instant housing. However, Hannam National Housing has no difference in the amount of taxation calculated in the year 207 because the maximum property tax rate is relatively higher than that of the instant housing, and even in the case of the construction time of the building, total number of households, etc., it is similar to the instant housing.

B. Examining these circumstances in light of the legal principles as seen earlier, it is difficult to see Yong-Name as falling under “a neighboring house” as stipulated in the instant provision in relation to the instant housing, and rather, there is sufficient room to see as falling under one of the first and second apartment units of Hannam-Name. (On the other hand, the lower court did not consider that the amount equivalent to the property tax in 2006, which was the basis for taxation of the property tax in 2007, was significantly different from the amount of the property tax in the year immediately preceding the year that served as the basis for taxation of the property tax in 2007, Hannam-Name as a neighboring house, and imposed the property tax in 207, based on the calculation of the amount equivalent to the property tax in 2006, it is difficult to see Hannam-Name as falling under the property tax in 207, because it is difficult to consider the amount equivalent to the property tax in 2007.

C. Nevertheless, the court below held that Yong-Namnam Loans constitute "a neighboring house similar to the provisions of this case in relation to the housing of this case" and held that the amount equivalent to the property tax of the preceding year in relation to the housing of this case is significantly different from the amount of property tax levied in the immediately preceding year in relation to the housing of this case.

For this reason, the disposition of this case, which was not considered as illegal, is judged to be erroneous. This decision is erroneous in the misapprehension of legal principles as to the provision of this case.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan

Justices Noh Jeong-hee

Justices Min Il-young

Justices Lee In-bok