Daejeon High Court Decision 2013 Daejeon District Court Decision 2886 ( October 24, 2013)

In the disposition of this case, the part imposed without deducting the amount of property tax partially constitutes double taxation.

In cases of comprehensive real estate holding tax in 2012, the amount of property tax to be deducted from the amount of comprehensive real estate holding tax, such as housing - the amount of taxation standard) ¡¿ fair market price ratio of property tax x the amount calculated by the formula of property tax rate

Article 5-3 of the Enforcement Decree of the Comprehensive Real Estate Tax

Revocation such as the imposition of comprehensive real estate holding tax, etc., 2013Guhap1794

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Head of Dong District Office

September 24, 2015

October 15, 2015

1. On November 16, 2012, the Defendant’s imposition of comprehensive real estate tax on the Plaintiff in 2012 exceeds ○○○○○○ in the imposition of comprehensive real estate tax in 2012, and the imposition of special rural development tax exceeding ○○○○○○ in the imposition of special rural development tax is revoked, respectively.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On November 16, 2012, the Defendant imposed ○○○○○○○ and special rural development tax on the Plaintiff in 2012 (hereinafter “instant disposition”).

B. The Plaintiff filed an objection against the Defendant on February 12, 2013, asserting that comprehensive real estate holding tax amount ○○○○ and special rural development tax should be revoked. However, the Defendant dismissed the objection on March 13, 2013. The Plaintiff filed an appeal with the Director of the Tax Tribunal on June 5, 2013, but the said claim was dismissed on September 4, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

If property tax and comprehensive real estate tax are imposed concurrently on the same taxable object, it is illegal as double taxation. In this regard, Articles 9(3), 14(3) and (6) of the Comprehensive Real Estate Holding Tax Act and Articles 4-2 and 5-3(1) and (2) of the Enforcement Decree of the Comprehensive Real Estate Holding Tax Act provide that in calculating the amount of comprehensive real estate holding tax, the amount of tax imposed as property tax shall be deducted for the portion

However, in calculating the deducted amount of property tax, the Defendant did not deduct only the amount of property tax imposed on the portion subject to the comprehensive real estate holding tax in accordance with the calculation method in attached Form 3 of the Enforcement Rule of the Comprehensive Real Estate Holding Tax Act by again multiplying the amount of property tax by the fair market price ratio, and did not deduct the remaining amount of tax. Therefore, the portion on which the comprehensive real estate holding tax was imposed without deducting

B. Relevant statutes

Attached Form 1 shall be as listed in attached Table 1.

C. Determination

1) The Local Tax Act amended by Act No. 7332, Jan. 5, 2005, in order to realize the tax base, requires that the property tax base should be calculated according to the annual application rate of the publicly notified price in order to alleviate a rapid tax burden following the introduction of a new system. The Gross Real Estate Tax Act enacted by Act No. 7328, Jan. 5, 2005, puts the aggregate amount of the property tax base to the comprehensive real estate tax base after deducting a certain amount of tax base from such aggregate amount of the property tax base.

However, since the application rate of the above Local Tax Act became final and conclusive each year as it was difficult to flexibly adjust the appropriate level of tax burden, so the Act was amended by Act No. 7843, Dec. 31, 2005; and the Comprehensive Real Estate Holding 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 adopted a fair market value ratio applicable to property tax and comprehensive real estate holding tax, so that the fair market value ratio can be determined based on both the publicly notified price of the property and comprehensive real estate holding tax, and Article 8(1)10 of the Enforcement Decree of the Local Tax Act provides that the fair market value ratio of the property and comprehensive real estate holding tax shall be 0/100 as the annual application rate of property tax and comprehensive real estate holding tax under Article 10(1) of the Enforcement Decree.

On the other hand, the purpose of the comprehensive real estate holding tax introduced following the reorganization of the real estate holding tax system on January 5, 2005 is to enhance equity in taxation burden on real estate holding and to stabilize the price of real estate by first imposing property tax, which is local tax, at a low rate, on a person who owns real estate in excess of a certain standard amount of taxation, and again imposing comprehensive real estate holding tax, which is national tax, at a high rate on a person who owns real estate in Korea.

As such, since property tax and comprehensive real estate holding tax are taxes based on the same taxable capacity as the possession of property subject to taxation, the Comprehensive Real Estate Holding Tax Act enacted by Act No. 7328 on January 5, 2005 requires that the amount of taxes imposed as property tax be deducted from the calculated amount of comprehensive real estate holding tax. Accordingly, Articles 4-2 and 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) provide that the amount of deducted property tax shall be calculated in accordance with the formula of "amount equivalent to property tax calculated as the standard tax rate for property tax on the portion exceeding the amount of property tax, such as housing, ± the amount equivalent to property tax calculated as the standard tax rate for property tax on the portion of housing, etc. ± the amount equivalent

After that, on February 4, 2009, Article 4-2, Article 5-3 (1) and (2) of the Enforcement Decree of the former Enforcement Decree of the Gross Real Estate Tax Act (amended by Presidential Decree No. 21293, Feb. 4, 2009) changed the method of calculating the amount of property tax to be deducted as property tax, such as housing 】 total amount of property tax equivalent to property tax calculated according to the standard tax rate of property tax on the tax base of housing ± the amount equivalent to property tax calculated according to the standard tax rate of property tax on the tax base of housing, etc. ± the formula of "amount equivalent to property tax calculated according to the standard tax rate of property tax on housing, etc. (hereinafter referred to as the "the formula of the Enforcement Decree of this case").

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 if the portion exceeding the standard amount of taxation, such as a house, stated in the molecular in the previous formula in the Enforcement Decree, was changed to the “tax base for the house, etc.” as stated in the molecular in the instant formula in the 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 for the portion exceeding the standard amount of taxation. Therefore, even if the method of calculating the amount of property tax was changed to the instant formula in the previous Enforcement Decree, such amendment

Furthermore, by examining the method of calculating the amount of property tax to be deducted according to the formula in the Enforcement Decree of the instant case, the amount of property tax to the portion exceeding the standard amount of taxation of the comprehensive real estate holding tax is calculated based on the formula in the fair market price ratio of the property tax x the amount of the comprehensive real estate holding tax. The amount of the comprehensive real estate holding tax to the same portion is calculated based on the formula in the fair market price ratio of the comprehensive real estate holding tax x the fair market price ratio of the comprehensive real estate holding tax. However, since this amount means the portion on which the property tax and the comprehensive real estate holding tax are imposed respectively for the portion of the publicly notified price - the amount of the comprehensive real estate holding tax - the amount on which the property tax and the comprehensive real estate holding tax are imposed respectively, the overlapping portion, i.e., the amount of taxation - the fair market price ratio of the comprehensive real estate holding tax x the amount on which the property tax is imposed in duplicate. In addition, since the comprehensive real estate holding tax is not imposed on the portion excluded from the fair market price ratio of the comprehensive real estate holding tax.

In full view of these facts, the amount of property tax to be deducted under the instant formula in the Enforcement Decree shall be calculated by the formula of "(public notice price - the standard amount of taxation) 】 the smaller of the fair market price ratio of property tax and comprehensive real estate holding tax 】 the property tax rate. Therefore, in cases of comprehensive real estate holding tax in 2012, the fair market price ratio of property tax is less than the fair market price ratio of comprehensive real estate holding tax or less than the fair market price ratio of comprehensive real estate holding tax x the fair market price ratio of property tax x the fair market price ratio of property tax x the property tax rate (see Supreme Court Decision 2012Du2986, Jun. 23, 2015).

2) Ultimately, in calculating the comprehensive real estate tax and special rural development tax for the year 2012 which the Plaintiff should bear by deducting the amount of property tax according to the instant formula, the amount exceeding the ○○○○○○○○○○○○○○○○ upon the Plaintiff’s request on November 16, 2012, among the imposition of comprehensive real estate tax for the Plaintiff on November 16, 2012, the amount exceeding the ○○○○○○○○○○○○○○○○○○○○○○○ upon the Plaintiff’s request, among the imposition of comprehensive real estate tax for the Plaintiff on November 16, 20

3. Conclusion

Then, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

partnership.