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

A. The Plaintiff is a company running the “○○cc” (hereinafter “instant golf course”) which is a membership golf course in KRW 55,00,00 ○○○○○-dong 555. On December 15, 2005, the Plaintiff classified the Defendant into general aggregate real estate tax and paid KRW 100,53,756, total real estate tax and KRW 20,110,751,751, under Article 11 of the Comprehensive Real Estate Tax Act and Article 182(1) of the former Local Tax Act (amended by Act No. 8864, Feb. 29, 2008; hereinafter the same) to the Defendant, pursuant to Article 11 of the Comprehensive Real Estate Tax Act and Article 182(1) of the former Local Tax Act.

B. On November 5, 2008, the Plaintiff filed a request for correction with the Defendant to the effect that the said sentence and payment, which classified the forest land in its original form preserved as a general aggregate subject to general aggregate taxation, are erroneous based on the statute that is unconstitutional, so that the said comprehensive real estate holding tax, etc. may be refunded. On November 25, 2008, the Defendant rendered the instant disposition rejecting the said request for correction against the Plaintiff

C. The Plaintiff dissatisfied with the instant disposition and filed a tax appeal on February 6, 2009, but was dismissed on April 24, 2009.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The assertion that the statute was based on unconstitutional

The instant disposition is unlawful as it is based on the Comprehensive Real Estate Tax Act and Article 182(1) of the former Local Tax Act, which is unconstitutional as follows.

(A) The Gross Real Estate Tax Act infringes on the essential contents of property rights and constitutes property tax, transfer income tax and double taxation, and is unconstitutional in violation of the principle of excessive prohibition and equality.

(B) Article 182(1) of the former Local Tax Act provides that the subject of taxation shall be classified into a general aggregate taxation, a separate aggregate taxation, and a separate aggregate taxation; subparagraph 1 provides that the land excluding the land subject to a separate aggregate taxation or a separate aggregate taxation; subparagraph 2 provides that the subject of taxation shall be the land prescribed by the Presidential Decree, which is owned by a person liable to pay tax as of the tax base date, and the land prescribed by the Presidential Decree, which shall be subject to a separate aggregate taxation. Of the above provisions, Article 182(1) of the former Local Tax Act comprehensively delegates its contents to subordinate statutes even though it is a provision concerning the important contents of the separate aggregate taxation and general aggregate taxation, which is in violation of the principle of no taxation without law and the principle of prohibition of comprehensive delegation.

(2) The assertion that the former Enforcement Decree of the Local Tax Act is unconstitutional or unlawful

The instant disposition was unlawful since it was based on the unconstitutionality or illegal enforcement decree as follows.

(A) Violation of the principle of equality

Article 131-2 (3) 14 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19817, Dec. 30, 2006; hereinafter the same) excludes forests and fields in land for a membership golf course from the separate taxation. The above provision deals with forests and fields in land for a membership golf course to the same extent as land for sports facilities in which the nature of the forests preserved in the original form of the golf course is different from land for a sports facility where profits are created and land for non-business use for the purpose of speculation. On the other hand, the above provision treats forests in the same nature as land for a golf course

(B) Infringement of freedom of occupation selection

The heavy taxation on the forest land preserved in its original form on the membership golf course under the above Enforcement Decree violates the freedom of occupation by making it virtually difficult to open and operate the golf course because it has a decisive influence on the profit or loss of the golf course.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

(1) Judgment on the assertion that the statute was based on unconstitutional

(A) As to the assertion that the Gross Real Estate Tax Act itself infringes on the essential substance of property rights or provides for the taxation of unrealized profits, etc. When imposing taxes, the imposition itself is recognized as justifiable in the Constitution. However, the basis and scope of imposing the real estate holding tax and its limit are only problematic. Comprehensive Real Estate Tax is not subject to collection of all real estate values within a short period of time in light of its tax rate, but is provided with a device to deduct property tax from the tax base of the comprehensive real estate holding tax. In full view of the fact that the regulations on comprehensive real estate holding tax do not infringe on the essential substance of property rights or violate the excessive prohibition or equality principle (see, e.g., Constitutional Court en banc Decision 2006Hun-Ba12, Nov. 12, 2008; 2007Hun-Ba71, 88, 94, 2008Hun-Ba3, 62, 208Hun-Ga12, Nov. 13, 2008).

Comprehensive real estate holding tax, in essence, recognizes the capacity to pay taxes and imposes taxes on the real estate holding itself as the tax base. Even if some profit-making nature exists, taxation on unrealized profits cannot be deemed to have been entirely revealed. It is merely a matter of legislative policy to determine whether the taxation on unrealized profits is based on the purpose of taxation, characteristics of taxable income, and issues of taxation technology, etc., and cannot be deemed as a conflict or inconsistent with the concept of tax under the Constitution (see Constitutional Court en banc Decision 9Hun-Ba3, 46 (Merger), Feb. 22, 2001).

The comprehensive real estate holding tax is a national tax imposed by recognizing the capacity to pay taxes on the real estate holding itself above a certain value, and its legislative purpose and object are different from that of property tax. Since the comprehensive real estate holding tax was established separately for the portion exceeding a certain value without maintaining property tax which is a local tax, it cannot be deemed as constituting property tax and double taxation. In addition, the comprehensive real estate holding tax differs from the transfer income tax imposed on profits accrued during the period of holding the comprehensive real estate holding tax, as well as the taxation requirements and taxation purposes. The comprehensive real estate holding tax does not constitute capital gains tax and double taxation.

(B) We examine the allegation that the statutory provisions of this case violate the principle of no taxation without law and the principle of no comprehensive delegation.

The principle of no taxation without law, which is stipulated in Articles 38 and 59 of the Constitution, is the core contents of the principle of no taxation without law and the principle of clarity of taxation requirements, and the principle of no taxation without law clearly provides for the requirements of taxation, thereby guaranteeing the property rights of the people and ensuring the legal stability and predictability of economic life at the same time. However, while observing the principle of no taxation without law, detailed matters that should be followed by changes in economic reality or development of professional technology should be delegated to administrative legislation with more scarcity than the formal law

The separate cumulative taxation stipulated in Article 182 of the former Local Tax Act is a system to correct unreasonable outcomes from the uniform application of the combined taxation, and it can be assumed that the economic activity should be used for normal economic activities as a common appearance of the relevant land. However, when determining whether certain land is included in the special aggregate taxation in relation to a specific economic activity, various variables, such as the economic activity in question and relation with the relevant land, the appropriate size of the land owned in accordance with the type of business, should be taken into account. Furthermore, the issue of whether certain land is subject to separate aggregate taxation should be flexibly and flexible in response to the change of economic situation, the direction of land policies, and the change of relevant laws and regulations.

Therefore, it is inappropriate for the National Assembly to list the above matters in the laws enacted by the National Assembly, as well as the work of selecting the subject matter is professional, technical, and variable, and there is a need to delegate subordinate Acts and subordinate statutes. Article 182 of the former Local Tax Act provides that "land prescribed by Presidential Decree, which has a considerable reason to impose a separate taxation by taking account of the above points, is "land prescribed by Presidential Decree". Thus, the provision of this case cannot be deemed to be in violation of the principle of no taxation without law or the principle of prohibition of comprehensive delegation (see Constitutional Court en banc Decision 2008Hun-Ga27, 2010Hun-Ba153, 365 (merged)). Therefore, the plaintiff's above assertion is without merit.

(2) Determination as to the assertion that the enforcement decree of this case is unconstitutional or unlawful

(A) We examine the assertion that the enforcement decree of this case violates the principle of equality.

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. 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 discriminate against or give preferential treatment to a specific taxpayer unfavorably 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, discrimination among taxpayers should be exceptionally permitted, and how to determine the contents of the tax law is recognized by the legislative. Today, the legislative person can take into account various perspectives to achieve the national economy, financial policy and social policy (see Constitutional Court Order 2002Hun-Ba43, Oct. 31, 2002).

The provisions of the Enforcement Decree of this case treat the "forest preserved in its original form" of a golf course, which must be preserved as it is without any artificial alteration of its form, as different from the "land for sports facilities where profit is created". The "forest preserved in its original form" of a golf course is treated as different from the "land for sports facilities where profit is created". The "forest preserved in its original form" is to be legally enforced for the golf course operation, which brings an effect of separating it from a hole or an outer area, and is to prevent accidents, and increases its utility by creating and maintaining beautiful landscape of a golf course, and thereby raising its utility jointly with a golf course, it is essentially the same as "land for sports facilities where profit is created", and it is in essence different from the "a simple forest connected with a golf course, which is irrelevant to a golf course business" (Article 131-2 (3) of the former Enforcement Decree of the Local Tax Act, which does not belong to land for public golf course or land for a membership golf course within the original aggregate taxation period of 20 years, but does not belong to the land for special aggregate taxation within the Presidential Decree No.317.

Therefore, since the enforcement decree of this case cannot be deemed to violate the principle of equality, the plaintiff's above assertion is without merit.

(B) We examine whether the instant enforcement decree provisions infringe on the freedom of occupation.

It is difficult to view that only heavy taxation on the preserved forest land of the original form of a golf course does not have a decisive impact on whether or not the golf course has accrued profit or loss, and the existence of profit or loss is ultimately attributable to the problem of the rationality of economic choice and the efficiency of corporate management. Therefore, even if the comprehensive real estate holding tax on the preserved forest land of the original form of a golf course has a significant burden, it can only be said to be an issue of economic choice, which would eventually lead to the issue of whether or not the golf course should acquire and operate the golf course even if taking over such economic burden, and the comprehensive real estate holding tax itself does not legally or factually prohibit the operation of the golf course, and therefore, the provision of the Enforcement Decree of the instant case cannot be deemed to infringe on the freedom of occupation (see Constitutional Court Order 96Hun-Ba64, Feb. 25, 199).

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.