[Instance]
Third instance (Supreme Court)
[Case Category]
Property tax
[Order]
The appeal is dismissed.
The costs of the appeal are borne by the Defendant.
[Reasoning]
1. Outline of the case
According to the reasoning of the judgment below and the evidence lawfully adopted and examined by the court below, the following facts can be established.
A. The Plaintiff is a housing reconstruction improvement project association that obtained authorization for the establishment of the association from the Defendant on December 4, 2009, in order to implement a housing reconstruction improvement project (hereinafter "the instant improvement project") in the area around ○ ◇◇-dong, Gangdong-gu, Seoul (hereinafter "the instant improvement zone").
B. On November 12, 2009, the Mayor of Seoul Metropolitan Government publicly notified the "Establishment of a Housing Reconstruction Improvement Plan and Designation of an Improvement Zone for the △△△△△ Complex Apartment and the Decision (Amendment) on the Type 1 District Unit Plan for the ◇◇ Housing Site and the Topographic Maps" (Seoul Metropolitan Government Notification No. 2009-444, hereinafter "the instant Notification").
C. In connection with the instant improvement project, the Plaintiff obtained authorization for project implementation from the Defendant on December 5, 2011, and authorization for the management and disposal plan on October 27, 2014, and obtained approval for completion on September 27, 2019, and publicly notified the transfer of ownership on May 27, 2020.
D. As a result of the implementation of the instant improvement project, the land within the instant improvement zone was reorganized into lots, and among them, land measuring 32,743.7㎡ (hereinafter "the instant land") was newly created as a park or road and reverted to the Defendant without compensation.
E. On September 10, 2018, the Defendant issued to the Plaintiff a disposition imposing property tax, etc. (hereinafter "the instant disposition"; the specific details thereof are as set forth in the corresponding part of the first instance judgment cited by the court below).
2. Relevant statutes and legal principles
A. Article 112(1) of the former Local Tax Act (지방세법) (before amendment by Act No. 16113 of December 31, 2018; hereinafter the same) provides that the head of a local government may, pursuant to the provisions of a municipal ordinance, levy the urban area portion of property tax on land, buildings, or houses prescribed by Presidential Decree located within an urban area under Article 6(1) of the Framework Act on National Land Planning and Utilization (국토의 계획 및 이용에 관한 법률, hereinafter "the National Land Planning Act") for which the relevant local council has passed a resolution and given public notice (hereinafter "an area subject to the urban area portion of property tax"). However, Article 112(3) provides that "notwithstanding paragraph (1), among the land within an area subject to the urban area portion of property tax, land for public facility use for which topographic maps have been publicly notified pursuant to the National Land Planning Act, or land designated as a development restriction zone, on which there are no aboveground buildings, golf courses, amusement parks, or other utilization facilities, shall be excluded from the taxable objects under paragraph (1)(2)."
Furthermore, Article 2(4) of the former National Land Planning Act (before amendment by Act No. 9861 of December 29, 2009; hereinafter the same) provides that "an urban management plan" means a plan established for the development, improvement, and preservation of a Special Metropolitan City, Metropolitan City, City, or Gun, concerning land use, transportation, environment, landscape, safety, industry, information and communications, health, welfare, security, culture, etc., as set forth in each of the following items, and lists, in item (라) [ra], "a plan concerning an urban development project or improvement project," and in item (마) [ma], "a plan concerning the designation or change of a district unit planning zone and a district unit plan." Article 2(5) provides that "a district unit plan" means "an urban management plan established for part of an area subject to the establishment of an urban plan in order to rationalize land use, enhance its functions, improve its aesthetics, secure a favorable environment, and manage the area systematically and in a planned manner."
As such, since Article 2(4)(라) and (마) [ra and ma] of the former National Land Planning Act clearly stipulates "plans concerning improvement projects" and "district unit plans," etc. as types of urban management plans, and considering that the Act on the Improvement of Urban Areas and Residential Environments (도시 및 주거환경정비법, hereinafter "the Urban Improvement Act") was enacted for the purpose of prescribing matters necessary to systematically improve areas requiring restoration of urban functions or areas with poor residential environments, and to efficiently improve deteriorated and substandard buildings, pursuant to urban management plans under the National Land Planning Act, and that improvement projects under the Urban Improvement Act are included in urban planning projects implementing urban management plans (see Supreme Court Decision 2010Du22498, decided February 24, 2011), the phrase "land for which topographic maps have been publicly notified pursuant to the National Land Planning Act" in Article 112(3) of the former Local Tax Act should be interpreted as including land for which topographic maps have been publicly notified pursuant to the Urban Improvement Act as well.
B. Meanwhile, Article 84(2) of the former Restriction of Special Local Taxation Act (지방세특례제한법) (before amendment by Act No. 16041 of December 24, 2018; hereinafter the same) provides that "with respect to land for public facilities under Article 2(13) of the National Land Planning Act (including land appurtenant to houses), for which an urban management plan has been decided and topographic maps concerning the urban management plan have been publicly notified pursuant to Articles 30 and 32 of the same Act, and which remains unexecuted as of the tax base date, 50/100 of the property tax on the relevant portion shall be reduced until December 31, 2018."
Previously, Article 84(2) of the Restriction of Special Local Taxation Act (before amendment by Act No. 14477 of December 27, 2016) provided that "with respect to land for public facilities under Article 2(13) of the National Land Planning Act (including land appurtenant to houses), for which an urban management plan has been decided and topographic maps concerning the urban management plan have been publicly notified pursuant to Articles 30 and 32 of the same Act, 50/100 of the property tax on the relevant portion shall be reduced." Under this provision, as long as topographic maps had been publicly notified for the land, property tax was reduced regardless of whether the urban planning project had been executed after the notification of the topographic maps or had already been completed. However, upon the amendment of the Restriction of Special Local Taxation Act on December 27, 2016, as described above, Article 84(2) was revised to provide that "in the case of land that remains unexecuted as of the tax base date, 50/100 of the property tax on the relevant portion shall be reduced." This can be seen as adding a new requirement, namely "unexecuted as of the tax base date after the topographic maps have been publicly notified," to the scope of application of Article 84(2), thereby excluding land for which execution has been completed as of the tax base date from the objects of reduction under Article 84(2), while continuing to grant reduction benefits, as before, for the unexecuted portion of the land (see Supreme Court Decision 2018Da287287, decided April 23, 2019).
Considering comprehensively the history of amendment of the relevant provisions, their language, and their purpose, land on which construction, etc. is being carried out as of the relevant tax base date and for which the execution of the urban planning project has not yet been completed may be deemed to constitute "land that remains unexecuted as of the tax base date" under Article 84(2) of the former Restriction of Special Local Taxation Act.
3. Determination
A. In order for a taxation disposition to be null and void as a matter of course, it is not sufficient that the disposition merely has a ground of illegality; the defect must be a serious violation of an important part of the statutes and must be objectively evident. In determining whether a defect is serious and evident, one must teleologically examine the purpose, meaning, and function of the statutes on which the taxation disposition is based, while also reasonably examining the particular circumstances of the specific case. Moreover, where a taxation disposition has been made by applying a certain statutory provision to a certain legal or factual relationship, if it is clearly established, leaving no room for dispute in interpretation, that the provision of the statute cannot be applied to that legal or factual relationship, yet the tax authority nevertheless applied the provision of the statute in making the taxation disposition, such defect must be deemed serious and evident (see Supreme Court en banc Decision 2017Da242409, decided July 19, 2018, etc.). Meanwhile, where the meaning of the requirements for a taxation disposition is clear from the language of the statutory provision, but the tax authority erroneously interpreted that meaning without reasonable grounds, resulting in the disposition being made without the requirements for the taxation disposition being satisfied, it cannot be said that the legal principle has not been clearly established and that there remains room for dispute in interpretation (see Supreme Court Decision 2011Du27094, decided May 16, 2014; Supreme Court Decision 2018Da287287, decided April 23, 2019).
B. With respect to whether the instant land is subject to non-taxation of the urban area portion of property tax, the court below determined that the instant land, whose use is as a road or park, constitutes land for public facilities as prescribed by Article 2(13) of the former National Land Planning Act, and that, even though the Mayor of Seoul Metropolitan Government mentioned Article 8 of the former Framework Act on the Regulation of Land Use (토지이용규제 기본법) (before amendment by Act No. 15324 of December 26, 2017) in the process of issuing the instant Notification, the said provision merely establishes common procedures to be followed where an area, district, etc. has been designated pursuant to the former National Land Planning Act, and therefore the notification of the topographic maps in the instant Notification cannot be deemed to have been made independently of the former National Land Planning Act; and that, in light of Article 112(3) of the former Local Tax Act, whose meaning is clear on its face, it is evident that the instant land is subject to non-taxation of the urban area portion of property tax. On these and other grounds set forth in its reasoning, the court below determined that the portion of the instant disposition imposing the urban area portion of property tax on the instant land had a serious and evident defect and was therefore null and void as a matter of course.
Furthermore, with respect to whether the instant land is subject to property tax reduction, the court below also determined that, in light of the history and reasons for the amendment of Article 84(2) of the former Restriction of Special Local Taxation Act and its current language, land on which construction, etc. is being carried out but has not yet been completed should properly be deemed to constitute "land that remains unexecuted as of the tax base date," which is subject to reduction under the said provision; and that the Defendant's failure to reduce 50/100 of the property tax on the instant land pursuant to the said Article 84(2) likewise constituted a serious and evident defect.
Examining the reasoning of the judgment below in light of the relevant provisions and legal principles set forth above and the record, the determination of the court below is justified, and there is no error therein, as alleged in the grounds of appeal, of misapprehending the legal principles regarding the meaning of "public facilities" under Article 2(13) of the former National Land Planning Act and "notification of topographic maps pursuant to the National Land Planning Act," a requirement under Article 112(3) of the former Local Tax Act, or regarding the seriousness and evidentness of a defect, or of failing to exhaust necessary deliberation, that affected the conclusion of the judgment.
4. Conclusion
The appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the decision.