종합부동산세와 재산세의 이중과세조정에 관한 소고(小考) - 대법원 2015.6.23. 선고 2012두2986판결을 중심으로 -

종합부동산세와 재산세의 이중과세 조정 기준을 검토한다.

The intent of this study is to suggest the standard for the adjustment of double taxation by analyzing a recent Supreme Court Judgement 2012두2986 regarding comprehensive real estate holding tax and property tax. Since the object of comprehensive real estate holding tax is housing and land above a certain amount, and that of property tax is land, building, housing, aircraft and ships, the possession of housing and land above certain amount imposes both comprehensive real estate holding tax and property tax. Theoretically, this makes the adjustment of double taxation inevitable.

However, in matters of deciding the means and level of adjustment should not be approached only on the theoretical perspective. Because the adjustment of the double taxation wholly depends of the discretion of lawmakers, and the problems regarding the means and level of adjustment cannot be illegal nor unconstitutional unless the it deviates from the discretion. Thus, the adjustment of double taxation in comprehensive real estate holding tax and property tax should be decided in the frame of the principle of no taxation without law nominally, unless it deviates from the lawmakers’ discretion.

This study shows that the double taxation issue occurs because the court mistakes the revised tax base, which is “the amount that exceeds the tax base including housing multiplied by the ratio of FMV” for the obsolete tax base, which is “the portion that exceeds certain amount including housing multiplied by annual adjustment ratio.

(80%)” Since the annual adjustment ratio is the temporary item employed to reduce the burden of comprehensive real estate holding tax, and was on the upward position, and the old tax base, which is “the portion that exceeds certain amount including housing”, had been designated as the object for double taxation adjustment, it became the object for comprehensive real estate holding tax (the declared value-certain amount) as well.

Later, in attempt to permanently reduce the burden of comprehensive real estate holding tax, the government reduced the tax base for comprehensive real estate holding tax by multiplying the ratio of FMV(currently 80%) with the previous tax base in 2008, when the unconstitutionality debate regarding comprehensive real estate holding tax ended. Since the tax base for comprehensive real estate holding tax decreased, the government decreased the amount of double taxation adjustment as well, by defining the revised tax base as the old tax base multiplied by the ratio of FMV(80%).

Since our lawmakers are adjusting double taxation of comprehensive real estate holding tax and property tax based on ‘tax base of comprehensive real estate holding tax,’ and this led to the adjustment in the content of double taxation adjustment, the arithmetic formula shown on the Enforcement Rule is completely identical to that of revised comprehensive real estate holding tax Enforcement Decree.

When combining all the analysis data, the recent controversy regarding the double taxation adjustment of comprehensive real estate holding tax and property tax is due to 1) the wrong decision to apply obsolete regulations rather than revised regulations, and 2) the failure to notice the fact that the adjustment of double taxation is under the lawmakers’ discretion unless it goes outside the scope of their authority.