Daejeon High Court Decision 2012 Daejeon District Court Decision 2499 ( October 17, 2012)

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 2011, 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 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., 2012Guhap2325

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Head of Dong District Office

December 10, 2015

December 17, 2015

1. On November 16, 2011, the Defendant’s imposition of comprehensive real estate tax on the Plaintiff in 2011 exceeds ○○○○○ upon the Plaintiff’s imposition of ○○○○○○○○○ upon the Plaintiff, and the imposition of ○○○○○ upon the imposition of ○○○○○○○ upon the Plaintiff’

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

Cheong-gu Office

Paragraph (1) shall apply.

1. Details of the disposition;

A. In calculating the amount of property tax deducted in the calculation of the amount of comprehensive real estate tax pursuant to Articles 9(3) and 14(3) and (6) of the former Gross Real Estate Tax Act (amended by Act No. 10799, Jun. 7, 2011; hereinafter the same shall apply), the Defendant calculated the amount of property tax to be deducted in the calculation of the amount of comprehensive real estate tax pursuant to Article 4-2, 5-3(1) and (2) of the former Enforcement Decree of the Comprehensive Real Estate Tax Act (amended by Presidential Decree No. 22952, Jun. 3, 2011; hereinafter the same shall apply), “the amount equivalent to property tax calculated as the standard tax rate of property tax for land portion or aggregate aggregate aggregate aggregate taxation on the tax base of land subject to comprehensive real estate holding tax (hereinafter referred to as “standard tax rate of property tax for rural development tax”) by calculating the amount of property tax to be imposed in accordance with the formula in attached Form 1-2(1) of the former Enforcement Rule of the Comprehensive Real Estate Tax Act (amended by Ordinance No. 2).

B. On February 14, 2012, the Plaintiff filed an objection against the instant disposition with the Defendant, but the Defendant dismissed the objection on February 23, 2012. The Plaintiff filed an appeal with the Director of the Tax Tribunal on May 18, 2012, but the said claim was dismissed on August 17, 2012.

[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 details and conjection of the amendment of the 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 calculated according to the annual application rate of the publicly notified price in order to alleviate 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 puts the aggregate amount of the property tax base to the comprehensive real estate holding 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 was determined to be raised in a phased manner each year, it was difficult to flexibly adjust the fair market price of property and comprehensive real estate holding tax so that it can be a reasonable level of tax burden. Accordingly, the Local Tax Act 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 price ratio of property and comprehensive real estate holding tax to be applied to property and comprehensive real estate holding tax within a certain scope in consideration of the real estate market situation, financial conditions, etc. However, Article 5 of the Addenda of the above Local Tax Act adopted a fair market price ratio of property and comprehensive real estate holding tax so that the fair market price ratio of property and comprehensive real estate holding tax can be determined based on all publicly notified prices, and Article 8(1), Article 13(1) of the former Local Tax Act and Article 10-10(1) of the Enforcement Decree of the Enforcement Decree of the Local Tax Act provides that the fair market price ratio of land.

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 though the portion exceeding the standard amount of taxation, such as house, stated in the molecular in the previous formula in the Enforcement Decree, was changed to the “tax base for 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, and thus, even if the method of calculating the deducted amount was changed to the instant formula in the previous Enforcement Decree, it cannot be deemed that the purpose of the amendment was to reduce or change the scope of the amount of property tax to be deducted (see Supreme Court Decision 2012Du298

2) Method of calculating the amount of property tax deducted pursuant to the instant Enforcement Decree

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 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, since this two amounts refer to the portion on which the property tax and the comprehensive real estate holding tax are imposed respectively for the portion of "public notice price - the standard amount of taxation," the overlapping portion is - i.e., the amount of taxation - the fair market price ratio of the comprehensive real estate holding tax 】 (public notice price - the standard amount of taxation - the fair market price ratio of the comprehensive real estate holding tax x the portion on which the property 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 full view of these points, the amount of property tax to be deducted according to the formula of the Enforcement Decree of this case 】 (Public notice price - the amount of tax base) 】 the smaller of the fair market price ratio of property tax and comprehensive real estate holding tax 】 the property tax rate 】 the amount of property tax. 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 】

On the other hand, in cases where the Ordinance of the Ministry of Government Administration and Home Affairs delegates the establishment of a part of the requirements for administrative disposition to the Ordinances of the Ministry, the provisions of the Ordinance shall also be binding on the citizens. However, in cases where the Ordinance of the Ministry amended the matters that meet the requirements for disposition as prescribed by the Ordinance of the Ministry although there is no delegation of the Ordinance, the provisions of the Ordinance of the Ministry shall be deemed not to be unlawful merely because they stipulate the standards, etc. for the internal affairs of the administrative agency and do not have external binding force on the citizens. Therefore, even if a certain administrative disposition is against the provisions of the Enforcement Rule without legal nature, the disposition shall not be deemed to be unlawful merely because it is against the provisions of the Enforcement Rule with no legal nature, and it shall not be deemed to be legitimate on the ground that it conforms to the requirements prescribed by the said Rule (see, e.g., Supreme Court Decision 2011Du10584, Sept. 12, 2013).

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

3) Whether the instant disposition is lawful

Therefore, the Defendant’s computation of the amount of property tax to be deducted by applying the instant formula in the Enforcement Rule is contrary to the purport of the instant formula in the Enforcement Rule, and as such, in calculating the amount of due comprehensive real estate tax by lawful calculation method, it is identical to the entry in the column of tax amount to be paid in the following table. Therefore, the portion exceeding KRW 000 of the imposition disposition of comprehensive real estate tax and KRW 000 of the imposition disposition of special rural

3. Conclusion

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

partnership.

Relevant statutes

former Gross Real Estate Tax Act (amended by Act No. 10789, Jun. 7, 2011)

Article 1 (Purpose)

Article 3 (Tax Base Date)

Article 7 (Taxpayer)

Article 8 (Tax Base)

Article 9 (Tax Rates and Amount of Tax)

Article 11 (Method of Taxation)

Article 12 (Taxpayer)

Article 13 (Tax Base)

Article 14 (Tax Rates and Amount of Tax)