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

A. The Plaintiff is a juristic person that operates ○○○○○○-si ○○○○○-si 52-1, a membership golf course (hereinafter “instant golf course”).

B. Pursuant to Article 11 of the Gross Real Estate Tax Act and Article 182(1) of the former Local Tax Act (amended by Act No. 8864 of Feb. 29, 2008; hereinafter referred to as the “former Local Tax Act”), the Plaintiff paid the Defendant a total real estate tax amounting to KRW 123,125,326 of the gross real estate tax for the year 2005, KRW 24,625,065, KRW 25,614, and KRW 259,614,423 of the gross real estate tax for the year 2006, KRW 51,922,84, KRW 37,496, KRW 273, KRW 67,49,279, and KRW 2733 of the gross real estate tax for the year 207, respectively.

B. On October 21, 2008, the Plaintiff filed a request for correction to the effect that the above return and payment made by classifying the forest land in its original form preserved as a general aggregate subject to general aggregate taxation are erroneous based on the law that is unconstitutional, and thus, the above comprehensive real estate holding tax should be refunded. However, on February 23, 2009, the Defendant rendered the instant disposition rejecting the above request for correction against the Plaintiff.

C. The Plaintiff dissatisfied with the instant disposition and filed a tax appeal on May 25, 2009, but was dismissed on March 19, 2010 and filed the instant lawsuit.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1 to 3, Eul evidence 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The assertion that the statute was 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 a subject of taxation is classified into a subject of general aggregate taxation, a subject of separate aggregate taxation, and a subject of separate aggregate taxation; subparagraph 1 provides that a subject of taxation is land excluding the land subject to general aggregate taxation, which is subject to separate aggregate taxation or a subject of separate aggregate taxation; subparagraph 2 provides that a subject of separate aggregate taxation is land of a building prescribed by the Presidential Decree, which is owned by a person liable to pay tax as of the taxable base date, and land prescribed by the Presidential Decree, which has a considerable reason to be subject to separate aggregate taxation. Of the above provision, Article 182(1) of the former Local Tax Act comprehensively delegates its content to subordinate statutes even though it is an important provision concerning the distinction between special aggregate taxation and general aggregate taxation (hereinafter referred to as the “instant provision”). The instant provision is unconstitutional

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) provides that forests for public golf course land shall be excluded from special aggregate taxation, and forests for public golf course land shall be excluded from special aggregate taxation. The above provision deals with forests for public golf course land and forests for public golf course land without reasonable grounds; (1) treats forests for public golf course in which the original preservation of forests for public golf course is different from those for sports facilities where the original preservation of forests for public golf course is different in nature; and (2) treats forests for public golf course, which are different from those for non-business purpose; and (3) treats forests for public golf course land of which nature is identical to those for non-business purpose; and thus, it violates the principle of equality

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

It is as shown in the attached Form.

C. Determination

1) Determination on the assertion that the statute was based on the unconstitutionality

A) First, we examine the argument that the Comprehensive Real Estate Holding Tax Act itself is unconstitutional, such as infringing on the essential contents of property rights or prescribing the taxation of unrealized profits.

When imposing taxes, it is recognized that the imposition of taxes, such as property tax imposed on the owner of assets itself, is justifiable under the Constitution. However, the basis, scope, or limitation of imposing taxes is merely problematic. Comprehensive real estate holding tax is not subject to the 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 for comprehensive real estate holding tax. In full view of the fact that the provisions of comprehensive real estate holding tax do not violate the fundamental contents of property rights or violate the excessive prohibition or the principle of equality (see Constitutional Court en banc Decision 2006Hun-Ba12, Nov. 12, 2008; 2006Hun-Ba12, 207Hun-Ba71, 88, 94, 2008Hun-Ba3, 62, 2008Hun-Ba12 (Joint)).

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 of the profits are taxable, taxation on unrealized profits cannot be deemed to have been entirely revealed. The taxation on unrealized profits is merely a matter of legislative policy to determine by considering the characteristics of taxable income subject to taxation, the problems of taxation technology, etc., and cannot be deemed as any inconsistency that contradicts or is incompatible with the concept of tax under the Constitution (see Constitutional Court en banc Order 99Hun-Ba3, 46 (Merger) Decided February 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) Next, we examine the allegation that the instant legal provision violates the principle of no taxation without law and the prohibition of comprehensive delegation, and thus, is unconstitutional.

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 the instant 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).

First of all, the provisions of the Enforcement Decree of this case treat the "forest for the original preservation of the form of a golf course" that must be preserved as it is without any artificial alteration of its form and treat it differently from the "land for sports facilities where profit is created". The "forest for the original preservation of the form of a golf course" is essentially the same as the "land for sports facilities where profit is created" in that the "forest for the golf course" is to be legally owned for the golf course business, which is to be separated from the domain or the outer area, and to prevent accidents, and to create and maintain beautiful landscape of the golf course, thereby increasing its utility by combining it with the golf course, and it is essentially different from the "a simple forest connected to the golf course" that is irrelevant to the golf course business.

Furthermore, the provisions of the Enforcement Decree of this case provide that the forest for preserving the original form of a membership golf course is subject to aggregate taxation. ① Membership golf course is classified into a high amount of transaction and private property, whereas various kinds of support, such as tax support, are being provided for public golf course in order to revitalize golf as a mass sports for ordinary people. ② It is integrated into a forest for preserving the original form of forest for membership golf course and is offered for use by members or users, and its characteristics are still maintained. In full view of the above, the original preservation forest for public golf course and the original preservation forest for public golf course are essential differences [Article 131-2 (3) of the former Enforcement Decree of the Local Tax Act does not belong to land for public golf course or land for membership golf course in violation of Article 131-2 (1) of the former Enforcement Decree of the Local Tax Act, which does not belong to land for which comprehensive real estate holding tax for public golf course in violation of Article 36 of the former Enforcement Decree of the Local Tax Act, which does not belong to land for public golf course in its original form.

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.

C) We examine whether the instant provisions of the Enforcement Decree infringe on the freedom to choose occupation. Even if the instant provisions do not stipulate forest land for membership golf course as land for separate taxation, and thus imposes a comprehensive real estate holding tax on preserved forest land for original form of golf course, regardless of such economic burden, the issue of whether to operate a golf course business is a matter of economic choice, and the comprehensive real estate holding tax itself does not legally or factually prohibit the operation of a golf course business. The instant provisions of the Enforcement Decree cannot be deemed as infringing on the freedom to choose occupation (see, e.g., Constitutional Court en banc Decision 96Hun-Ba64, Feb. 25, 199). Accordingly, the Plaintiff’s assertion is without merit.

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.