Supreme Court Decision 2012Du2986 ( October 23, 2015)

Seocho 2010Ch2413 (Law No. 9.20, 2010)

The calculation of the property tax to be deducted by applying the formula in the Enforcement Rule is against the purpose of the Enforcement Decree formula.

The amount of property tax to be deducted according to the formula in the Enforcement Decree of the instant case 】 (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.

Article 9 of the Gross Real Estate Tax Act

2015Nu1368 Revocation of the imposition of comprehensive real estate holding tax, etc.

AA Association other than an AA Association

AA Head of the tax office

Supreme Court Decision 2012Du2986 ( October 23, 2015)

October 14, 2015

November 25, 2015

1. The portion of the GG's primary claims of the stock company, the exchange of which has been changed in the trial after remand, shall be dismissed;

2. At the preliminary claims of Company GG added in the trial after remanding and returning each claim by the AA Cooperatives, the BF Cooperatives Federation, theCC Fund, the DF Corporation, the EE Company, and the FF Company, the preliminary claims of the Company, the Company added in the trial, each of which exceeds the respective comprehensive real estate tax and special rural development tax in the annexed Table 4 of the Disposition List Nos. 1, 3, 11, 13, 17, 26, and 27 as stated in the annexed Table No. 1, 3, 13, 11, 13, 17, 26, and 27 against the Company other than the relevant AA Association shall be revoked.

3. 별지 3 이 사건 처분목록의 순번 2, 4 내지 10, 12, 14 내지 16, 18 내지 25 기재 해당 AA조합 외에 대한HH세무서장，BB세무서장，II세무서장，JJ세무 서장, KK세무서장, LL 세무서장, MM세무서장，NN세무서장，OO세무서 장, PP세무서장, GG세무서장，QQ세무서장의 각 항소를 각 기각한다.

4 All costs of the 4th lawsuit shall be borne by the director of the AA tax office.

1. Purport of claim

A. Plaintiff GG Co., Ltd.

1)The portion of gross real estate tax and special rural development tax stated in the [Attachment 4] list of comprehensive real estate tax and special rural development tax in 2009, listed in the [Attachment 22] list of the disposition disposition of this case against GG Co., Ltd., by the GG Head of the GG Tax Office

2) The rejection of rectification made by the Director of the GG Tax Office around February 23, 2010 to GG Co., Ltd. on February 23, 2010 is revoked.

Preliminaryly, on May 21, 2014, the head of the GG Tax Office revoked the portion of comprehensive real estate tax of KRW 13,854,73,850 in comprehensive real estate tax of KRW 2,770,770,946,750 in total rural development tax of KRW 2,98,836,660 and special rural development tax of KRW 59,767,340 in total real estate tax of KRW 13,854,73,850 in general real estate tax of KRW 209 and KRW 27 in the special rural development tax of KRW 2,98,836,660, and KRW 59,767,340 in the primary claim for revision of the purport of the disposition of this case of KRW 16,209 (the disposition of imposition of KRW 13,23,2010 appears to be the error of the previous disposition of refusal of correction, and the previous disposition of refusal of correction at least 251.

(b) The rest of AA Cooperatives other than the others

The portion of the imposition of comprehensive real estate tax and special rural development tax listed in the attached Table 4 among the disposition of imposition of each kind of real estate tax and special rural development tax listed in the attached Table 3 by the outside of the head of the AA Tax Office against the above AA Association in addition to the above AA Association shall be revoked (However, the above claim was changed in exchange according to the portion of the disposition of reduction other than the head of the AA Tax Office, and HB Bank, HB Bank, HB Bank, JJ Bank, KJ Bank, and K and LL Bank were reduced in accordance with the disposition of reduction and correction other than the head of the relevant AA Tax Office, and the claim was reduced in accordance with the disposition of reduction and correction other than the head of the relevant AA Tax Office).

2. Purport of appeal

The judgment of the first instance shall be revoked. All claims other than AA association shall be dismissed.

1. Details of the disposition;

A. On the date of each disposition listed in the No. 1 through No. 26 of the original disposition list, other than the head of the AA tax office, imposed comprehensive real estate tax and special rural development tax in 2009 on the relevant AA association other than the relevant AA association. However, on December 23, 2009, GG Co., Ltd. reported and paid comprehensive real estate tax of KRW 13,864,378,380, special rural development tax, and special rural development tax of KRW 2,772,875,670 to the head of the GG tax office and filed a request for correction on the ground that the above tax amount was overpaid, but the above request was notified on February 12, 2010 that there was no ground to rectify the said tax amount (No. 27 of the same list).

B. In calculating the amount of property tax deducted from the amount of comprehensive real estate holding tax pursuant to Article 9(3) and Article 14(3) of the former Comprehensive Real Estate Holding Tax Act (amended by Act No. 1021, Mar. 31, 2010; hereinafter the same shall apply) and Article 4-2 and Article 5-3(1) and (2) of the former Enforcement Decree of the Comprehensive Real Estate Holding Tax Act (amended by Presidential Decree No. 22813, Mar. 31, 201; hereinafter the same shall apply), the head of the tax office other than the AA shall calculate the amount of property tax to the tax base of land which is housing or aggregate aggregate and separate taxation; the amount equivalent to property tax calculated according to the standard tax rate of property tax in attached Form 20 of the former Enforcement Rule of the Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 1023, Sep. 23, 2009; hereinafter the same shall apply).

[Grounds for Recognition] Unsured Facts, Gap evidence 1, 2, and evidence 5 and 6 (including each number), the purport of the whole pleading

2. Whether the main claim of GG Co., Ltd. in the instant lawsuit is legitimate

ex officio, this part of the lawsuit is examined.

Where a correction disposition is made after a tax disposition has already been imposed, the initial disposition would lose its independent existence value by absorbing the increased tax amount into the increased tax amount (see Supreme Court Decision 2006Du17390, May 14, 2009). Therefore, in principle, in a case where a taxpayer files a lawsuit seeking revocation of the disposition of rejection of the increased tax amount (see Supreme Court Decision 2006Du17390, May 14, 2009) and the taxpayer files a lawsuit seeking revocation of the disposition of rejection of the reduced tax amount in order to avoid duplication of the deliberation on the determination of the same tax liability and conflicts with the determination, barring special circumstances, a lawsuit seeking revocation of the disposition of rejection of the reduced tax amount shall be deemed unlawful as there is no interest or need to seek revocation (see Supreme Court Decision 2004Du8972, Oct. 1

In light of the above legal principles, the fact that GG, Inc. reported and paid comprehensive real estate tax and special rural development tax in 2009 by GG, Inc., was subject to the disposition of increase on May 21, 2014 is as seen earlier, and that GG, Inc. added a preliminary claim seeking cancellation of the above increase in light of the fact that GG, Inc.’s primary claim is subject to the extinguished disposition, or it is unlawful as there is no benefit or need to seek cancellation.

3. Whether each of the dispositions of this case is legitimate

1) If property tax and comprehensive real estate tax are imposed concurrently on the same taxable object, it is unlawful as double taxation. Therefore, Articles 9(3) and 14(3) and (6) of the former Comprehensive Real Estate Tax Act and Articles 4-2, 5-3(1) and 5-3(2) of the former Enforcement Decree of the Comprehensive Real Estate Tax Act stipulate that the tax amount imposed as property tax shall be deducted in calculating the amount of comprehensive real estate tax.

However, in calculating the amount of property tax to be deducted, other than the head of the AA tax office, 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 AA comprehensive real estate holding tax, multiplied again by the fair market price ratio of the comprehensive real estate holding tax, and did not deduct the remaining amount of tax. Therefore, the portion of property tax imposed on each of the dispositions

(2) The Ministry of Finance and Economy officially expressed the view that when imposing the comprehensive real estate holding tax on September 3, 2003 through the explanatory materials of the title " how to change the taxation system of real estate holding tax, the amount of the property tax imposed by local governments is deducted in full, and thus, it is not unconstitutional because it is not double taxation. Nevertheless, it is against the principle of trust protection to impose the comprehensive real estate holding tax without deducting the amount of the property tax partially."

Attached Form 6 is as shown in the relevant statutes.

C. Determination

1) Details and purport of the amendment of relevant laws and regulations

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 under 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 Act enacted by Act No. 7328 on January 5, 2005 requires that the amount obtained by deducting a certain amount of tax base from the total amount of the property tax base should be the comprehensive

However, since the application rate of the above Local Tax Act was determined to be increased each year as a step-by-step, it was difficult to flexibly adjust the fair market price to a reasonable level, so the Act amended by the Local Tax Act No. 7843, Dec. 31, 2005; and the Comprehensive Real Estate Tax Act amended by Act No. 9273, Dec. 26, 2008, calculated the tax base based on both the publicly notified price of the property tax and comprehensive real estate tax, and calculated the fair market price rate to be applied to the property tax and comprehensive real estate tax within a certain scope, taking into account the trend of real estate market, financial conditions, etc. (Article 5 of the above Addenda of the Local Tax Act). However, the aforementioned provision of Article 20 of the former Enforcement Decree of the Local Tax Act prescribed the fair market price rate of 10/20 of the property tax and comprehensive real estate tax as 30/100 of the annual applicable rate of property tax and 20/100 of the former Enforcement Decree of the Local Tax Act.

On the other hand, 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, which is a local tax, at a low rate on a person holding property subject to taxation, and again imposing property tax at a high rate on a person holding real estate in excess of a certain standard amount of taxation, which is a national tax. As such, since 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, the Comprehensive Real Estate Holding Tax Act enacted on January 5, 2005, enacted on January 5, 2005, deducted 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).

"그 후 2009. 2. 4. 대통령령 제21293호로 구 종합부동산세법 시행령 제4조의2, 제5 조의3 제1항 및 제2항이 개정되면서 공제되는 재산세액의 계산방법을주택 등의 재산 세로 부과된 세액의 합계액 x 주택 등의 과세표준에 대하여 주택 등의 재산세 표준세 율로 계산한 재산세 상당액 수 주택 등을 합산하여 주택 등의 재산세 표준세율로 계산 한 재산세 상당액'의 산식(이하 '이 사건 시행령 산식'이라 한다)에 의하도록 변경하였 는데, 이는 연도별 적용비율 제도를 폐지하고 재산세와 종합부동산세 모두 과세기준금 액을 초과하는 분에 공정시장가액비율을 곱한 금액으로 과세표준을 산정하게 됨에 따 라 공제되는 재산세액의 계산방법을 변경하기 위한 것이다.", "이러한 지방세법, 종합부동산세법 및 종합부동산세법 시행령 관련 규정의 개정 경위와 취지 등에 비추어 보면, 종전 시행령 산식의 분자에 기재된주택 등 과세기준금액 을 초과하는 분' 이 사건 시행령 산식의 분자에 기재된 '주택 등의 과세표준'으로 변경되었다고 하더라도，과세기준금액을 초과하는 부분에 대하여 종합부동산세와 중복 부과되는 재산세액을 공제하려는 기본 취지에는 아무런 변화가 없으므로，공제되는 재산세액의 계산방법이 종전 시행령 산식에서 이 사건 시행령 산식으로 변경되었다고 하더라도 이러한 개정의 취지가 공제되는 재산세액의 범위를 축소・변경하려는 것이었다고 볼 수는 없다.",2) 이 사건 시행령 산식에 따라 공제되는 재산세액의 계산방법 종합부동산세의 과세기준금액을 초과하는 부분에 대한 재산세액은 '(공시가격 - 과세기준금액) ×재산세 공정시장가액비율'의 산식을 기초로 계산되고, 같은 부분에 대한 종합부동산세액은 <공시가격 - 과세기준금액) x 종합부동산세 공정 시장가액 비율' 의 산식을 기초로 계산된다. 그런데 이 두 금액은 '공시가격 - 과세기준금액| 부분에 관하여 각각 재산세와 종합부동산세가 부과되는 부분을 뜻하므로, 그 중 서로 중첩되는 부분, 즉 '(공시가격 - 과세기준금액) ×종합부동산세 공정시장가액비율'보다 적거나 같은 '(공시가격 - 과세기준금액) x 재산세 공정시장가액비율' 부분은 중복하여 재산세가 부과되는 부분에 해당한다. 더불어 종합부동산세 공정시장가액비율을 벗어나 종합부동산세 과세표준에서 제외된 부분에 대하여는 아예 종합부동산세가 부과되지 않으므로 중복 부과임을 이유로 공제되는 재산세액을 산정할 때 이 부분은 고려할 필요가 없다.

In full view of these points, the amount of property tax to be deducted under the formula of the Enforcement Decree of this case should be calculated according to the formula of "(public price - taxation standard amount) x property tax and comprehensive real estate tax x less ratio of fair market price x property tax x property tax rate x property tax rate. Therefore, in the case of comprehensive real estate tax in 209, the property tax amount to be deducted from the fair market price ratio of comprehensive real estate tax such as housing - property tax x property tax x property tax rate x property tax x property tax rate x property tax x property tax rate x." Meanwhile, in a case where the Ordinance of the Ministry of Government Administration and Home Affairs provides for some of the requirements of administrative disposition as delegated by the Ordinance of the Ministry of Government Administration and Home Affairs, the provisions of the Ordinance of the Ministry of Government Administration and Home Affairs shall be deemed to be binding for citizens, but if there is no delegation of the statutes, and thus, it shall not be deemed to be an unlawful disposition in accordance with the relevant regulations of the Ministry of Government Administration and Home Affairs.

As seen earlier, the amount of property tax deducted from the amount of comprehensive real estate holding tax, such as housing, should be calculated in accordance with the instant Enforcement Decree, and thus, each of the instant dispositions cannot be deemed lawful solely on the ground that it was calculated in accordance with the instant Enforcement Rule

3) Whether each of the dispositions of this case is legitimate

Therefore, calculating the amount of property tax to be deducted by applying the formula in the Enforcement Rule of this case to each of the dispositions of this case is contrary to the purport of the Enforcement Rule of this case. If a legitimate tax amount is calculated according to a lawful calculation method, it is identical to the entry in the separate sheet in attached Form 4 (see, e.g., entry in each party tax item in the list in attached Form 5 calculation statement, and less than 10 won). Therefore, the part of each of the dispositions

4. Conclusion

그렇다면 이 사건 소 중 환송 후 당심에서 교환적으로 변경된주식회사 GG의 주위적 청구 부분은 부적법하므로 이를 각하하고,AA조합，BB조합 중앙회，CC기금, DD공사，EE 주식회사，FF 주식회사에 대하여는 환송 후 당심에서 교환적으로 변경된 청구에 따라,주식회사 GG에 대하여는 환송 후 당심에서 추가된 예비적 청구에 따라 이 사건 각 처분 중 위 정당세액 을 초과하는 부분을 취소하며，나머지 AA조합 외의 청구 및주식회사 GG의 별지 3 이 사건 처분목록의 순번 22 기재 처분의 취소를 구하는 청구를 인용한 제1심 판결 은 이와 결론을 같이 하여 정당하므로 그에 대한HH세무서장, BB세무서장, II세무서장, JJ세무서장，KK세무서장, LL 세무서장，MM세무서장, NN세무서장，OO세무서장，PP세무서장，GG세무서장, QQ세무서장의 각 항소는 이유 없어 이를 각 기각하기로 하여 주문과 같이 판결한다.