2. The costs of lawsuit shall be borne by the Plaintiff.

가. 원고는 충북 〇〇군 〇〇면 〇〇리 40-1 일원에서 회원제 골프장인 '〇〇cc'(이 하 '이 사건 골프장'이라 한다)를 운영하는 회사이다.

나. 원고는 2006. 12. 15. 그 소유의 이 사건 골프장 내 충북 〇〇군 〇〇면 △△리 산 61-2 임야 13,816㎡ 외 58필지 586,125㎡의 원형보전임야(이하 '이 사건 원형보전임야'라 한다)를 종합합산과세대상으로 분류하여 피고에게 구 종합부동산세법 (2010. 3. 31 법률 제10220호로 개정되기 전의 젓, 이하 '구 종합부동산세법'이라 한다) 제11조, 구 지방세법(2006. 9. 1. 법률 제7972호로 개정되기 전의 것, 이하 '구 지방세법'이라 한다) 제182조 제1항 제1, 2호에 따라 종합부동산세 508,315,741원, 농어촌특별세 101,663,148원을 신고 ・ 납부하였다.

C. After that, on April 2007, the Plaintiff filed a request with the Defendant for correction to the effect that the report was erroneous in accordance with the statutes unconstitutional and unlawful, and that the comprehensive real estate holding tax, etc. should be refunded. However, on June 29, 2007, the Defendant rendered the instant disposition rejecting the request to the Plaintiff.

D. On September 27, 2007, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on September 27, 2007, but the Tax Tribunal dismissed the Plaintiff’s claim on March 13, 2008.

[Ground of recognition] A without dispute, entry of Gap evidence 1 to Gap evidence 4, whether all pleadings are taken

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) unconstitutionality of applicable statutes

(A) unconstitutionality of the Comprehensive Real Estate Tax Act itself

The Comprehensive Real Estate Tax Act added the essential contents of property rights, and ② guarantees objectivity and fairness in the evaluation as a taxation on unrealized gains, ③ violates the double taxation prohibition principle, and ④ violates the local tax law by incorporating the taxable items to be regulated by the Local Tax Act, ④ discriminates against the person holding real estate and the person holding stocks or deposits, etc., and also violates the principle of equality by treating them as the taxable capacity of the person acquiring and holding real estate in his own capital and the person acquiring and holding real estate in another person’s capital. ② Violation of the principle of equality and Article 119(2) of the Constitution is also violated.

(B) unconstitutionality of Article 11 of the former Gross Real Estate Tax Act and Article 182(1) of the former Local Tax Act

1) Violation of the principle of no taxation without representation and prohibition of comprehensive delegation

Article 11 of the former Gross Real Estate Tax Act and Article 182(1) of the former Local Tax Act provide that the subject of taxation shall be classified into general aggregate taxation, special aggregate taxation, and separate taxation; subparagraph 1 provides that the subject of comprehensive aggregate taxation shall be the land excluding the land subject to comprehensive aggregate taxation, which is subject to separate aggregate taxation or separate taxation; subparagraph 2 provides that the subject of comprehensive aggregate taxation shall be the land attached to the building prescribed by the Presidential Decree, which is owned by the person liable to pay tax as of the base date for taxation, and the land prescribed by the Presidential Decree, which has a considerable reason to be subject to separate aggregate taxation; and the above "building prescribed by the Presidential Decree" or the subject of separate aggregate taxation shall be comprehensively delegated to the subordinate Acts and subordinate statutes, even though it is the most important provision for the distinction

2) Other substantial violation of the no taxation without representation, infringement of property rights, etc.

In addition, Article 11 of the former Comprehensive Real Estate Tax Act and Article 182 (1) of the former Local Tax Act are in violation of the principle of no taxation without law, they infringe property rights, they constitute double taxation, they are subject to taxation on unrealized, violate local finance rights, infringe on freedom of choice of occupation, violate freedom of choice of occupation, and violate the principle of equality, and violate Article 119 (2) of the Constitution.

(C) unconstitutionality of Article 131-2(3) of the former Enforcement Decree of the Local Tax Act

1) Violation of the principle of equality

Article 131-2 (3) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19817 of Dec. 30, 2006) provides that forest preserved in the original form of a membership golf course shall be subject to general aggregate taxation. This treats forest preserved in the original form of a membership golf course as equal to "land for sports facilities where the nature of the forest preserved in the original form of the golf course is different from that of "land for sports facilities where profit-making is created" and "land for non-business use for speculation purposes", while it treats forest of the same nature differently from "a simple forest connected to a golf course" and thus, it violates the principle

2) Infringement of freedom of occupation selection

The heavy taxation on the forest land preserved in its original form of the golf course is likely to substantially impede the opening and operation of the golf course, so it infringes on the freedom of choice of occupation.

(D) Sub-determination

Therefore, the instant disposition is unconstitutional and illegal as it is based on the unconstitutional Comprehensive Real Estate Tax Act, Article 182(1) of the former Local Tax Act, and the Enforcement Decree of the instant case.

(2) Illegal in calculating the tax base

As the land for sports facilities, the officially assessed individual land price was determined. This is considerably higher than the current market price of neighboring forest land or the current market price being traded in the surrounding areas. Therefore, as the decision of officially assessed individual land price is unlawful, the disposition of this case based on the premise of the tax base is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to whether the underlying statute is unconstitutional

(1) Determination on the assertion of unconstitutionality of the Comprehensive Real Estate Holding Tax Act itself (see Constitutional Court Order 2006HunBa112, Nov. 13, 2008)

(A) Legislative discretion in tax laws and legislative purpose of the Gross Real Estate Tax Act

Today, taxes have various functions, such as re-distribution of income, proper distribution of resources, and adjustment of economy, as well as the original function of the nation's requirement of re-collection. Therefore, in determining the citizens' tax burden, it is necessary to make a comprehensive policy judgment throughout the entire state of government, such as finance, economy, and social policies, and to determine the requirements for taxation. Therefore, in determining what contents the tax laws should be prescribed, the legislators should make a decision based on accurate data about the actual state of the state's finance, social economy, national income, and people's lives, so this is left to the policy and technical judgment based on the legislative formation discretion of the legislators (see Constitutional Court Decision 2005Hun-Ba75, Jan. 17, 2007). Therefore, determining the requirements for taxation in the tax law belongs to the legislative discretion of the legislator unless it is remarkably unreasonable. Therefore, whether the comprehensive real estate holding tax in this case is unconstitutional or not should be determined depending on whether it deviates from the legislative discretion.

Meanwhile, the purpose of the Comprehensive Real Estate Tax Act is to contribute to balanced taxation of local governments and sound development of the national economy by imposing comprehensive real estate holding tax on high-amount real estate holders, enhancing fairness in tax burden on possession of real estate, and stabilizing the price of real estate (Article 1). In other words, the Comprehensive Real Estate Tax Act is to contribute to resolving income imbalance by imposing taxes conforming to the principle of ability to pay taxes, restrain the speculation of real estate, change the composition ratio of land holding, while it was a low rate at the time of legislation, while the comprehensive real estate holding tax was a high rate at the time of legislation in order to correct the phenomenon of dials which are high-rate taxes. Accordingly, according to such legislative purpose, the comprehensive real estate holding tax takes the form of imposing taxes according to the cumulative tax rate as national taxes in order to impose taxes corresponding to the owner’s re-performance by making the amount exceeding a certain amount of taxes on housing and land subject to

(B) As to whether the essential content of the property right is infringed

1) In general, the imposition and collection of taxes in relation to taxes and property rights are based on the duty to pay taxes to the public and do not infringe on property rights in principle. However, in a case where the result of a complete denial of the private property system, a gratuitous confiscation of property rights, and a deprivation of property rights by retroactive legislation is brought about, the essential contents of property rights may be infringed. As such, in imposing and collecting taxes for the realization of public interest, the State may impose and collect taxes only to the extent that the taxpayer remains (see Constitutional Court Order 99Hun-Ba3, Feb. 22, 2001).

2) Articles 35(3) and 122 of the Constitution provide a broad legislative discretion on the right to land property to the State, and imposes an obligation on all citizens to endeavor to live a pleasant residential life through housing development policies, etc. The Gross Real Estate Tax Act, which is a concrete method for realizing the above constitutional provisions, aims to enhance tax equity on real estate holding by imposing comprehensive real estate holding rights on high-amount real estate holders, thereby contributing to balanced local finance and sound development of the national economy by stabilizing the prices of real estate, and the Comprehensive Real Estate Tax Act does not collect all real estate values within a short period in light of its tax rate, and it is difficult to view that the Gross Real Estate Tax Act infringes on the essential substance of property rights.

(C) As to the taxation issue of unrealized gains

The comprehensive real estate holding tax is, in essence, based on the fact that the real estate was owned by itself as the tax base, and it is difficult to view that the issue of taxation on unrealized profits is all revealed even if a part of the real estate holding tax base, and the taxation on unrealized profits is also a matter of legislative policy that is determined by considering the purpose of taxation, characteristics of taxable income, and the problem of taxation techniques, etc., and does not seem to be any inconsistency or inconsistency with the tax concept under the Constitution. Furthermore, considering that the comprehensive real estate holding tax per se recognizes the taxable capacity in possession of real estate and imposes tax on it, even if a part of the real estate holding tax, which is the original, is temporarily unconstitutional due to such reasons alone, it cannot be said that the comprehensive real estate holding tax is unconstitutional immediately.

(D) As to whether the principle of double taxation prohibition is violated or not

Since the amount of comprehensive real estate holding tax under the Comprehensive Real Estate Holding Tax Act is calculated by deducting the amount of tax imposed as property tax on real estate subject to taxation, the problem of double taxation does not arise since even though the portion imposed as property tax and the portion imposed as property tax by the local government is divided into real estate holding tax and the portion paid as property tax is not paid again.In addition, the comprehensive real estate holding tax is a kind of holding tax which uses all real estate subject to taxation across the country as the tax base for the ‘real estate value by owner or by household', and it is different from the transfer income tax imposed on the ‘income from transfer' as the object of taxation or object of taxation. Therefore, the problem of double taxation does not arise because the comprehensive real estate holding tax does not constitute double taxation in relation to the property tax and transfer income tax.

(E) As to whether local finance rights are infringed

The issue of whether the comprehensive real estate holding tax should be a national tax or local tax depends on the taxation purpose and legislative policy of the relevant tax, and the comprehensive real estate holding tax has been newly established for the portion exceeding a certain value without maintaining the property tax, which is a local tax, so it cannot be deemed that the right of local finance has been infringed.

(F) Whether the principle of equality is violated or not

1) The Gross Real Estate Tax Act imposes comprehensive real estate holding tax on only high-value real estate holders, thereby discriminating against those holding property rights, such as deposits or stocks of the same value. However, in Korea, the supply of land or housing is restricted differently from stocks, etc., and in Korea, there is a need to deal differently because the price increase or speculative phenomenon is considerably higher than deposits or stocks, etc. due to the imbalance in supply and demand of land and housing, and the problem of land or housing leads to the issue of the right to live a decent life as an essential goods for a living. In light of the fact that land or housing is significant in its public nature, such discrimination is not deemed to violate the principle of equality.

2) Meanwhile, since the comprehensive real estate holding tax base is to be understood as tax-bearing capacity of real estate holding itself exceeding the taxation standard amount, it shall not be deemed that the real estate holding tax base was based on the actual value of the real estate held after deducting the debts from the value of the real estate held, and thus, it shall not be deemed that the gross real estate holding tax, the value of which is the value of the real estate held as the tax base, is erroneous or contrary to the principle of ability to bear taxes. Thus, it shall not be deemed that the comprehensive real estate holding tax, which is the value of the

(G) As to the violation of Article 119(2) of the Constitution

Article 119(2) of the Constitution of the Republic of Korea provides that "the State may regulate and coordinate the economy in order to maintain the balanced growth and stability of the national economy, to maintain the distribution of income, to prevent market control and abuse of economic power, and to maintain the democratization of the economy through harmony among economic entities, the imposition of possession tax itself does not seem to be prohibited, and the comprehensive real estate holding tax is not permissible beyond "regulation and coordination on the economy to maintain the proper distribution of income" permitted by Article 119(2) of the Constitution, and it is difficult to view the comprehensive real estate holding tax as a prior regulation beyond "regulation and coordination on the economy to maintain the distribution of income."

(2) Determination on Article 11 of the former Gross Real Estate Tax Act, Article 182(1) of the former Local Tax Act (see Constitutional Court Order 2008HunGa27, Dec. 28, 2010)

(A) As to the assertion against the principle of no taxation without law and prohibition of comprehensive delegation

1) Article 11 of the former Gross Real Estate Tax Act provides that the comprehensive real estate holding tax on land located in Korea shall be imposed separately from the general aggregate taxation subject to Article 182(1)1 of the Local Tax Act and the special aggregate taxation subject to Article 182(1)2 of the same Act. Since the Plaintiff asserted only the unconstitutionality of the part related to Article 182(1)1 and 2 of the former Local Tax Act, this part is limited to this part.

2) Whether Article 182(1)1 of the former Local Tax Act is unconstitutional, among Article 11 of the former Gross Real Estate Tax Act

Article 182 (1) 1 of the former Local Tax Act provides that the land, except the land subject to a separate aggregate taxation or separate taxation among the land owned by a person liable to pay tax as of the base date of taxation, shall be subject to general aggregate taxation, and does not comprehensively delegate the general aggregate taxation to the Enforcement Decree of the same Act. Thus, the argument that the above provision violates the principle of

3) Whether Article 182(1)2 of the former Local Tax Act is unconstitutional, among Article 11 of the former Gross Real Estate Tax Act

A) It is difficult to view that the forest land to be preserved in its original form falls under “land annexed to a building as prescribed by the Presidential Decree” under the main sentence of Article 182(1)2 of the former Local Tax Act, and therefore, the legal provision directly related to the instant case is the part of “land as prescribed by the Presidential Decree, which has a considerable reason to be subject to separate taxation” under the main sentence of Article 182(1)2 of the former Local Tax Act (hereinafter “instant legal provision”).

B) The principle of no taxation without law under Articles 38 and 59 of the Constitution is the core contents of the legal principle of taxation requirements and the principle of clarity of taxation requirements. It is the idea of guaranteeing people’s property rights and ensuring people’s legal stability and predictability in their economic life at the same time by clearly stipulating the taxation requirements. However, in light of the principle of no taxation without law, detailed matters that must be followed by changes in economic reality or the development of professional technology need to be delegated to administrative legislation more shotly than the formal legislation of the National Assembly. However, even in this case, since the contents and scope already stipulated by subordinate laws and regulations are clearly defined in the former, the delegation of the law must be carried out on a specific and individual basis. However, the existence of the existence of the specification, clarity, or predictability of delegation should not be determined with only one specific provision, but also be determined with an organic and systematic comprehensive consideration of the entire relevant provisions and specific and individual examination of the delegated matters in accordance with the nature of the delegated matters.

C) The separate cumulative taxation stipulated under the legal provision of this case is a system to correct unreasonable outcomes from the uniform application of the combined taxation, and as seen below, the economic activity is very complicated and diverse, and in determining whether certain land is included in the separate aggregate taxation in relation to a specific economic activity, various variables, such as the relationship between the relevant economic activity (type of business) and the relevant land, the adequate size of the land in accordance with the type of business, etc. As such, the issue of whether certain land is subject to separate aggregate taxation needs to be flexibly and flexibly regulated in response to economic changes, the law enacted by the National Assembly as well as the need to delegate it to the relevant law because it is professional, technical, and variable.

D) Furthermore, the legal provision of this case is limited to "land prescribed by the Presidential Decree, which has a considerable reason to impose a separate aggregate taxation," and it can be deemed that it is considerably comprehensive and abstractly defined in the form of language only, but it does not make it difficult to predict at all the contents to be prescribed by the Presidential Decree according to its delegation. In other words, it can be said that the meaning of "land annexed to a building", which is defined as a separate aggregate taxation along with the legal provision of this case, is defined as "land subject to separate aggregate taxation" as a separate aggregate of light, through the newly establishing circumstance of the local tax provision of this case, systematic interpretation with other relevant legal provisions, etc.

E) In addition, in the case of forest land preserved in its original form in the membership golf course at issue in this case, it is difficult to view that there is a concern about speculation or excessive possession in that the ownership is enforced under the law and the development or separation is prohibited. However, in the Local Tax Act itself, the land for membership golf course, unlike the public golf course, is classified as land subject to separate taxation of high rate property tax (Article 182 (1) 3 (c) and the acquisition tax rate provision also provides five times the standard tax rate (Article 112 (2) 2), etc., it is anticipated that property tax or comprehensive real estate tax on the forest land preserved in its original form in the golf course will be treated differently from the membership golf course. Therefore, in light of the overall legal system of this case and related laws, the scope or limitation of delegation can be objectively determined, and therefore, it cannot be said that our legal provision of this case violates the Constitution because it satisfies the requirement of clarity derived from the rule of law, which is the basic principle of the Constitution.

(B) As to the assertion regarding the violation of the principle of no taxation without law and infringement of property rights

1) In determining the unconstitutionality of a statutory provision, the determination shall be made on the basis of whether the statutory provision itself contains unconstitutional contents. The mere fact that the enforcement decree or enforcement decree enacted pursuant to the constitutional statutory provision contains unconstitutional contents cannot be said to constitute the unconstitutionality of the relevant statutory provision.

2) The instant legal provision itself does not provide any disadvantage to the Plaintiff in relation to the relationship with the Plaintiff, and it is only decided whether the Enforcement Decree enacted thereunder provides the preserved forest of its membership golf course as a general aggregate subject to general aggregate taxation or as a special aggregate subject to separate taxation.

3) Therefore, since the effect of the Plaintiff’s actual violation of the principle of no taxation without law and infringement of property rights occurs pursuant to the Enforcement Decree of the instant case, the Plaintiff’s assertion concerning the unconstitutionality of the instant legal provision, which is the underlying law, is without merit, on the ground of the unconstitutionality of the Enforcement Decree of the instant case.

(3) Determination as to the enforcement decree of this case

(A) As to the violation of the principle of equality

1) The principle of equality under Article 11(1) of the Constitution is the principle of tax equality to be implemented in the field of tax law. It is a principle that the imposition and collection of taxes must be conducted fairly and equally commensurate with the taxpayer’s ability to pay taxes, and it is not allowed to unfavorably discriminate or give preferential treatment to a specific taxpayer without reasonable grounds (see Constitutional Court Order 98Hun-Ma55, Nov. 25, 1999; Constitutional Court Order 93Hun-Ba2, Jun. 26, 1996; Constitutional Court Order 93Hun-Ba2, Jun. 26, 1996). However, in a case where there are reasonable grounds, discrimination among taxpayers is exceptionally permitted. As to how to determine the contents of the tax law, the legislative branch is granted a broad freedom of formation, and today, in addition to the purpose of securing re-collection, various points of view may be considered (see Constitutional Court Order 2002Hun-Ba43, Oct. 31, 2002).

2) The instant provisions of the Enforcement Decree treat “forest preserved in the original form of a golf course that needs to be preserved as it is without any artificial alteration of its form and quality” like “land for sports facilities where benefits are created,” and treat it differently from “a simple forest connected to a golf course.” However, in light of ① the characteristics of a membership golf course, which is recognized as property other than the provision of sports opportunity, as it is operated in a closed form other than an open golf course with an attempt to discriminate from a public golf course, ② forests preserved in the original form and are provided for use only by its members or users as land which is legally required for the golf course’s business, and ③ forests preserved in the original form and form are provided for use only by its members or users, taking into account the fact that the said forests play a role to cut off the golf course and forests, and only the users of a golf course other than the general public can substantially access them, it is essentially different from “a simple forest connected to a golf course.”

3) Therefore, the enforcement decree provision of this case cannot be deemed to violate the principle of equality.

(B) As to whether freedom to choose an occupation is infringed

1) It is difficult to view that only heavy taxation on the preserved forest land in its original form of a golf course has a decisive impact on whether it has accrued profit or loss of a golf course. Likewise, as other companies under the free market economic order, the issue of whether it has accrued profit or loss depends upon the reasonableness of economic choice and the efficiency of corporate management. Therefore, even if the gross real estate holding tax on the preserved forest land in its original form has a big burden, it is a matter of economic choice which ultimately leads to the issue of whether to acquire a golf course and operate a golf course, and it is not a legally or actually prohibited operation of a golf course.

2) Therefore, the instant Enforcement Decree provision cannot be deemed as infringing on the freedom of occupation (see, e.g., Constitutional Court Order 96HunBa64, Feb. 25, 1999).

(4) Sub-determination

Therefore, the Plaintiff’s assertion that the instant disposition was unconstitutional, based on the Comprehensive Real Estate Tax Act, the instant legal provision, and the Enforcement Decree provision, is unlawful is without merit.

D. Determination as to whether the calculation of the tax base is illegal

(1) In a case where there is an error in the determination of the officially assessed individual land price, it can be asserted as an administrative disposition subject to the administrative litigation and the illegality thereof can be asserted as an independent ground for illegality in the administrative litigation seeking revocation of the determination of the officially assessed individual land price, which is a prior disposition, such as a taxation based on the above, etc. (see, e.g., Supreme Court Decision 93Nu8542, Jan. 25,

(2) As to the instant case, it is essentially identical to the land for the sports at which the original conservation forest of the golf course is created, and the mere forest connected to the golf course is essentially different from the forest connected thereto as seen earlier. Therefore, this part of the Plaintiff’s assertion on a different premise is without merit without any need to further examine it.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.