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(영문) 회원제골프장용 토지에 대한 재산세 중과가 헌법상 평등원칙과 재산권 보장 원칙에 위배된다는 청구주장의 당부

조세심판원 조세심판 | 2014-06-19 | 조심2014지0012 | 지방

[Case Number]

[Case Number] High Court Decision 2014Do0012 (Law No. 19, 2014)

[Items]

[C] Property [Types of Determination]

[Summary of Decision]

[Summary of Decision] Whether a law based on the disposition is in violation of the Constitution is beyond the scope of a request for a tax trial due to the jurisdiction of the Constitutional Court, and unless the Constitutional Court made a decision of unconstitutionality with respect to the relevant provisions of the Local Tax Act, the disposition by the disposition authority is not erroneous, unless the disposition authority has made a decision of unconstitutionality

[Related Acts]

[Related Acts] Article 13 of the Local Tax Act

【Reference Decision】

[Reference Decision] High Court Decision 2011 middle 5117

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. As of the assessment basis date of property tax ( June 1, 2013) in 2013, the agency issued a notice of imposition of the KRW OO, the sum of KRW OOO, and the sum of KRW OOO on September 10, 2013, calculated by applying the tax rate, such as Article 111(1)1(c)(ii) of the Local Tax Act (Amended by Act No. 11873, Jun. 7, 2013; hereinafter the same shall apply) with respect to the land owned by the applicant corporation (hereinafter referred to as “this real estate”).

(b)the claimant has lodged an objection to it and filed an OO appeal;

2. Opinion of the requesting corporation and the disposition agency;

A. The claimant corporation's assertion

(1) Violation of fair taxation, which is the constitutional principle of equality.

(A) According to the enactment of the Installation and Utilization of Sports Facilities Act in the past in 1989, golf courses are stipulated as sports facilities such as skiing ground, tennis ground, and camping ground. Despite the fact that golf courses were exempted from the digging field of private sector, which was stipulated at the time of emergency measures in 1974, it would infringe on equity and fairness, which are the basic principles of taxation, to impose heavy taxes on golf courses with maintaining the heavy taxation structure that was imposed on private facilities under the past Emergency Measures Act.

(B) On the basis of the membership system and the public taxation history of the golf course and the history of differential taxation, it is just that the current membership golf course is a sports facility subject to the Installation and Utilization of Sports Facilities Act along with the skiing ground, swimming pool, bowling ground, etc. In the case of the current membership golf course, and unlike other sports facilities, since the local tax was imposed on the private property subject to the presidential emergency measures in 1974, it is imposed by applying heavy taxation rate to the current membership golf course facilities as private property where only the membership golf course facilities continue to exist. As such, the property tax rate applicable to the membership golf course and the public golf course is as follows.

More than 4% of the separate taxation on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property tax on property of public golf courses 0.2% of the separate taxation on property on property on property on property on property on property of property on property on property of

(C) Examining the history of the discrimination against property on a membership golf course:

(1) There was no heavy taxation system from the year 1962 to the year 1972, which began to impose property tax due to the abolition or enactment of the Local Tax Act ( December 8, 1961).

② Thereafter, the Local Tax Act amended on March 12, 1973 classified golf courses as private property, and began to impose heavy taxation on the land of all golf courses except for golf practice ranges and Vietnam golf courses by twice (4/1,000) of the general tax rate (2/1,00), with the exception of golf practice ranges and Vietnam golf courses;

③ The Presidential Emergency Decree No. 3 (No. 14, 1974) imposed heavy taxes not only on the land for golf courses, but also on the building at 50/1,000 (general tariff rate of 25 times); and

④ The Local Tax Act was amended on December 27, 1974 to enact the Emergency Measures, and its scope was 15 years until 1989 when the Local Tax Act was amended for the purpose of introducing the aggregate land tax.

(5) As the Local Tax Act (Article 84-3(1)) provides that the aggregate of the property tax on land and the property tax on land and the property tax on multi-owned land, which have been already imposed in accordance with the Act amended on June 16, 1989, shall be subject to heavy taxation by stipulating “land and buildings in all golf courses other than golf practice ranges” in Article 84-3(1) of the Enforcement Decree of the Local Tax Act (Article 84-3(1) so that “land and buildings in all golf courses other than golf practice ranges” excluded from the previous subject of heavy taxation, it shall

(6) On June 29, 190, the relevant provision was amended to "All land and buildings subject to registration under Article 4 (2) of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act as real estate for membership golf courses", and the scope of heavy taxation on golf courses independently provided in the Local Tax Act depends on the contents of the Installation and Utilization of Sports Facilities Act until that time, the land is excluded from subject to heavy taxation, not only from landscaping (including natural conditions) but also from subject to heavy taxation, as it excludes public golf courses from subject to heavy taxation for 17 years since 1973 as land is excluded from subject to heavy taxation.

7) On May 28, 1996, the Enforcement Decree of the Installation and Utilization of Sports Facilities Act was amended and excluded from the installation of sewage treatment, etc. separately from the golf course in the course of the operation of a golf course. The landscaped area under item (b) was subject to heavy taxation in areas where the landscape was created after changing the form and quality of the land due to forest damage, diversion of farmland, etc. for the creation of the golf course, except for the natural condition of the landscaped area. Even if the management facility under item (c), the buildings not directly used for the purpose of the golf course, such as swimming pool, tennis court, driving range, training facility, sewage treatment facility, and solar heat use facility, were excluded from the subject of heavy taxation of local taxes

④ The Local Tax Act amended on January 5, 2005 changed the name of the comprehensive real estate holding tax, which was in force since January 1990, and changed the ownership price of land into the comprehensive real estate holding tax, which is a national tax, and changed the ownership price of the land. With respect to the portion exceeding a certain amount, the Local Tax Act was amended to impose the comprehensive real estate holding tax, which is a national tax. Meanwhile, the Local Tax Act was amended to impose the property tax on all land, while the amount of 50/1,00 of the property tax on the golf course maintained for 32 years was reduced by 40/1,00 of the heavy tax rate and 50/1,000 of the property tax rate for the golf course maintained for 32 years. This was merely a measure to reduce the tax burden by itself.

9. As part of measures to advance the service industry in September 26, 2008, property tax rate has been reduced from 4 to 2 percent for a limited period of two years for a membership golf course in an area outside the Seoul Metropolitan area.

(D) Although property tax is equal to or similar to a public golf course (including a place operated concurrently with a membership system and a public system) at least 10 times to 10 times the amount of property tax is in violation of the principle of equality and the principle of excessive prohibition, and unlike a gambling place or a high-class recreation center, a golf course is a general sports facility provided for in the Installation and Utilization of Sports Facilities Act, and is a business that inevitably uses large-scale land due to its industrial characteristics, even if it is inevitable to use the golf course, it is subject to property tax at a high rate (4%) by treating it as a private property identical to a gambling place or high-class recreation center, as well as the regulations that stipulate that the imposition of comprehensive real estate tax at a high rate (2%) shall be imposed on forests and fields around the course, which are mandatory under the law, are in violation of the principle of equality.

(E) The original preservation is also different from the development site of golf courses, etc., where substantial profits are created due to the compulsory regulations that need to preserve the original form, as well as the essential land owned by the law for the implementation of golf courses. Although the membership system and the public system are identical to the area of the obligation to preserve and preserve the preserved forest in its original form, it is deemed that “the following forests are excluded: Provided, That the forests and fields for the membership golf course under the Installation and Utilization of Sports Facilities Act are excluded: Provided, That the forests and fields for the membership golf course under the Installation and Utilization of Sports Facilities Act are excluded, and the original form of the land for the golf course under Article 12 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act is preserved” in Article 101(3)13 of the Enforcement Decree of the Local Tax Act, and thus, “a forest that maintains the original form of the land for a skiing ground and a golf course” in Article 12 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act

Considering the policy consideration that the tax rate differs as a general cumulative taxation or separate cumulative taxation according to the land's purpose, it is reasonable to impose taxes by including the land which is normally used for the business with respect to the land which is to be held in need of compulsory and essential under the Installation and Utilization of Sports Facilities Act, as in the case of the requesting corporation, in the case of the land which is normally used for the business. However, without considering in-depth consideration, it is required to include the land in the general aggregate taxation for non-business as a whole and to pay taxes by being included in the general aggregate taxation for non-business use, and the discrimination taxation against the public system with the same use or form is in violation of the principle of equality under the Constitution.

(f)In the absence of foreign cases, the difference between the membership golf course currently established and operated in the Republic of Korea and the public golf course, the membership golf course will be a golf course using the method of borrowing money from the members (individual or corporation) as security and providing convenience (such as reducing usage fees) equivalent to the interest thereof. On the other hand, if a golf course is constructed with a long-term loan from members, instead of a long-term loan from their members or funds borrowed from their own funds or banks, it cannot be found that the difference between each facility of a golf course with a membership golf course and a golf course annexed to a public golf course cannot be found. In addition, recently, the membership golf course has been operated as a membership system and converted into a public system by returning the membership fee to its members, or from the beginning, the number of golf courses with higher usage fees than from the beginning of the public golf course increases.

Although the reality is that, 40 years prior to the end of 40 years where the national income per capita was too much less than 20, and that the heavy taxation system on the golf course introduced to convert the quality capital into the funds of social infrastructure or production facilities according to the circumstances of the country's economy and society is still not only unreasonable, but also it is clear that any country in the world is not a country imposing heavy taxation on the golf course.

Furthermore, during the amendment of the Local Tax Act in 1990, public golf courses are excluded from heavy taxation, and they continue to be subject to heavy taxation in excess of 10 times until now with respect to membership golf courses with no difference in all respects. This is dealt with differently, which is in violation of the principle of equality under the Constitution to treat differently.

(2) Violation of the constitutional property right by taxation

(A) Article 23(1) of the Constitution provides that property rights shall be guaranteed, while Article 37(2) provides that fundamental rights may be restricted by law only in cases where it is necessary for national security, maintenance of order, or public welfare. The Constitutional Court considers that property rights may be infringed if a taxpayer’s right to use, profit from, and dispose of private property is seriously restricted (see, e.g., Constitutional Court Decision 2003Hun-Ba72, Feb. 24, 2005). Even if taxes are imposed, if the actual result results in forfeiture of all real estate values as tax purposes within a considerably short period of time (see, e.g., Constitutional Court Decision 2006Hun-Ba12, Nov. 13, 2008).

(B) If the authority of a taxpayer to use, profit-making, or dispose of private property is seriously restricted due to the imposition and collection of taxes, it may be infringed on property rights (see Constitutional Court Decision 6Hun-Ga19, Dec. 24, 1997; Supreme Court Decision 9-2, 762, 773). In imposing and collecting taxes for the realization of public interest, the State may impose and collect taxes only to the extent that the essential content and personnel usefulness of property rights and the right to dispose remain in the taxpayer. The imposition and collection of taxes in a short period of time is in fact collected as the entire land value as a tax, and it shall not bring about the effect of gratuitous forfeiture of land property rights (see Constitutional Court Decision 99Hun-Ba3 (see Constitutional Court Decision 234-15(2)3, Apr. 29, 199; Supreme Court Decision 201Hun-Ba37, Apr. 29, 199; 201-1304, Jan. 4, 20199).

Property tax on real estate for golf course use imposed on the claimant corporation, as well as in excess of the scope of the ordinary rent profit (1 to 2% of the annual officially announced land price), and in particular, in the case of the original preservation area, it does not generate any profit by itself from the land which is mandatorily preserved by the law, but it does not constitute a violation of property right by taxation.

(C) Even in a case where the real estate holding tax is not imposed beyond the scope of use and profit-making, it can be said that the private utility and the right of disposal, which is the essential substance of the property right, can be imposed only on the taxpayer only to the extent that it remains in the taxpayer. In theoretical sense, 50% of such profit should remain in the number of taxpayers. In light of these standards, it is determined that the tax amount imposed exceeds 50% of the expected profit, and thus, there is unconstitutionality if the annual average sales of one golf course is more than 1.25 billion won and the annual average annual payment of one golf course is more than 5.79 million won. This is a constitutional element in the application of the anti-amount taxation principle, in which the annual average sales of one golf course is more than 1.25 billion won and the annual average payment of 5.7 billion won.

(D) In imposing taxes according to the excessive prohibition principle under Article 37(2) of the Constitution, the legitimacy of the purpose of preventing infringement of property rights and the minimum nature of infringement and the balance of legal interests should be ensured. However, property tax is imposed uniformly regardless of the purpose and status of ownership and use of the pertinent real estate subject to property tax, and the process of acquisition, etc., and it goes against the principle of excessive prohibition under the Constitution to allow taxpayers to bear taxes to the extent that they cannot join as a result of general aggregate taxation, such as non-business land for which the relevant golf course is legally enforced, is subject to property tax.

The provisions of the Local Tax Act, which are currently in force, provide that property tax-related provisions of the Local Tax Act, which are currently in force, shall be a common and reasonable approach in light of the constitutional value and social norms, shall be set at a higher level of fruit compared to the surrounding land solely on the ground that golf course operators, such as a claimant corporation, own land, etc., and have continued to change and develop too much more than 40 years, so far as the developed countries have entered the large scale, the property tax which is more than 10 to 20 times the general property of sports facilities such as golf courses, is imposed as heavy taxation, while the same has not been developed in the accidents closed more than 40 years ago, and as a result, is imposed on the sports facilities such as golf courses for which statutory ownership is enforced, to the extent that taxpayers are unable to reduce according to the general aggregate taxation, such as the land for non-business purpose.

Ultimately, the relevant provisions of Article 111 (1) of the Local Tax Act and the relevant provisions of Article 101 (3) of the Enforcement Decree of the Local Tax Act, which provide for the preservation of the original form of a golf course, which is enforced under the laws and regulations, as the land for non-business use for speculative purpose, are unconstitutional because they violate the equality rights, property rights, and the principle of prohibition of excessive restriction as stipulated in the Constitution.

(b) Opinions of disposition agencies;

The imposition of property tax on this real estate shall be legally conducted in accordance with the Local Tax Act, and the taxation of property tax, etc. shall be based on the standards set by the tax authorities for the realization of tax policy purposes, and it constitutes the scope of legislative formation authority and thus, unless the relevant provisions are ruled unconstitutional, the objection for the reason of unreasonable reason is not reasonable. Therefore, the argument of the requesting corporation cannot be accepted.

3. Hearing and determination

(a) Points in dispute;

(1) Whether the portion of property tax on land for golf courses falls under a violation of fair taxation which is the principle of equality under the Constitution.

(2) Whether the portion of property tax on land for golf courses constitutes an infringement on the right to property guaranteed by the Constitution.

(b) Related Acts and subordinate statutes, etc.: To be stated in the attached Form;

C. Facts and determination

(1) On September 10, 2013, the disposition agency issued a notice of imposition of property tax, etc. on the instant real estate, which is land for golf courses owned by the applicant corporation as of the tax base date of property tax in 2013.

(2) The applicant filed an OO appeal against the disposition of imposing the property tax, etc. on the disposition authority.

(3) In full view of the above facts and the relevant laws and regulations, the issues ① and ② are examined.

The applicant corporation asserts that the relevant provisions of Article 111(1) of the Local Tax Act and the relevant provisions of Article 101(3) of the Enforcement Decree of the same Act, which provide that the preservation of the original form of a golf course, which is legally enforced, shall be subject to general aggregate taxation, such as non-business land for the purpose of speculation, are in violation of the equality rights, property rights, and the principle of prohibition of excessive restriction as stipulated in the Constitution.

Whether specific disposition made by a disposition agency is against the tax law, not a violation of the tax law, but a law based on the disposition is against the Constitution of the Republic of Korea, which goes beyond the scope of a request for a tax trial, as the matter of the jurisdiction of the Constitutional Court. In addition, unless the Constitutional Court made a decision of unconstitutionality due to the relevant legal provisions of this case, the disposition that the disposition agency imposes property tax, etc. on the basis of the Local Tax Act is judged to be different (the same purport is the same as the disposition that the disposition is made by the disposition agency).

Therefore, the imposition of property tax based on the provisions of Article 111 (1) 1 (c) of the Local Tax Act and Article 106 (1) 2 (b), Article 101 (3) 13 of the Enforcement Decree of the same Act, which stipulate that property tax shall be subject to general aggregate taxation in a membership golf course at a rate of 40/1,00 and that it shall be subject to total aggregate taxation of preserved forest land in its original form, are in violation of the principle of equality under Article 11 (1) of the Constitution, and Article 101 (3) 13 of the Enforcement Decree of the same Act are in violation of the principle of equality under Article 11 (1) of the same Act, and

4. Conclusion

This case shall be decided as ordered by Article 123 (4) of the Framework Act on Local Taxes and Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for the trial has no merit as a result of the review.