Early High Court Decision 2008J 1148 (208.06.04)

Comprehensive Real Estate

Dismissal

The Constitutional Court, which takes charge of the adjudication on the constitutionality of a law, has no decision that the Comprehensive Real Estate Holding Tax Act is unconstitutional as of the date of the deliberation, and thus refuses the applicant's request

Article 55 of the Framework Act on National Taxes

National High Court Decision 2006No1840/Sgd. 1

I dismiss the appeal.

1. Summary of disposition;

On June 1, 2006, the claimant and wife KimO owned three houses such as OOOOOOO 84.6 square meters (hereinafter referred to as "influence real estate"), and reported and paid 3,756,690 won for comprehensive real estate tax in 2006 and 751,330 won for special rural development tax in December 5, 2006.

After all, the claimant, on December 21, 2007, filed an application for rectification for refund of comprehensive real estate holding tax already paid on the ground that the Comprehensive Real Estate Holding Tax Act is in violation of the Constitution, but the disposition agency notified the applicant of the rejection of the application for rectification on February 18, 2008.

On March 26, 2008, the claimant appealed against this and filed an appeal for adjudication.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

Since the Comprehensive Real Estate Tax Act is against the principle of free market economy, and it constitutes unconstitutional law such as property rights, equality rights, freedom of residence transfer, marriage and family life guaranteed by the Constitution, it is unfair to refuse a request for correction of comprehensive real estate holding tax reported and paid by the claimant.

(b) Opinions of disposition agencies;

Since the Gross Real Estate Tax Act is enacted through legitimate procedures and promulgated by law, whether it is in violation of the Constitution is a matter under the jurisdiction of the Constitutional Court pursuant to Article 111(1)5 of the Constitution and Article 2(5) of the Constitutional Court Act, a disposition rejecting a request for correction against the claimant is justifiable.

3. Hearing and determination

A. Key issue

Whether the Comprehensive Real Estate Holding Tax Act constitutes an invalid law in violation of the Constitution should revoke the disposition rejecting a request for correction for refund of the previously paid Comprehensive Real Estate Holding Tax.

(b) Related statutes;

The relevant laws and regulations at the time this case's taxation requirement is established.

(1) Article 55 of the Framework Act on National Taxes (Article 55 of the Framework Act on National Taxes) (1) Any person whose rights or interests are infringed upon by either unlawful or unreasonable disposition or by failing to receive the necessary disposition under this Act or other tax-related Acts, may request the revocation or alteration of the disposition or the necessary disposition upon request for examination

(2) A person who has filed a tax base return within the statutory due date of return for correction, etc. 2 【request for correction, etc.】 may request the chief of the competent tax office to determine or correct the tax base and amount of the national tax for which the initial return and the revised return have been filed, within 3 years after the legal due date of return, in the following cases:

1. Where the tax base and tax amount entered in the tax base return (referred to the tax base and tax amount after such decision or correction is made, if such decision or correction is made under the provisions of each tax-related Act), exceed those to be returned under the tax-related Acts;

(3) 【Person Liable for Tax Payment” under Article 7 of the Gross Real Estate Tax Act ① A person liable for tax payment of property tax on a house as of the tax base date who is in excess of 600 million won (in the case of an individual, referring to the aggregate amount by household; hereinafter “standard amount of taxation on a house”) shall be liable to pay the gross real estate tax. In this case, an individual shall be a person who belongs to one household (hereinafter “household”) and is prescribed by the Presidential Decree as a principal housing owner (hereinafter “principal housing owner”).

(4) 【Tax Base of Gross Real Estate Tax” Article 8 of the Gross Real Estate Tax Act (1) The tax base of comprehensive real estate holding tax on housing shall be the amount which remains after deducting 600 million won from the total amount of published prices of housing by each taxpayer.

(5) 【Tax Rate and Tax Amount of Comprehensive Real Estate Tax” Article 9 of the Comprehensive Real Estate Holding Tax Act refers to the amount calculated by applying the following tax rates to the tax base (hereinafter “Comprehensive Real Estate Holding Tax Amount for Housing”).

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10/100 not exceeding 300 million won;

30 million won to 1.4 billion won; 15/1000; or

1. 20/1000 to 9.4 billion won;

9.4 billion won to 30/1000

(2) In calculating the amount of comprehensive real estate holding tax on housing, with respect to the comprehensive real estate holding tax on housing for which the liability to pay tax arises within the period from 2006 to 2008, the amount calculated by multiplying the tax base by tax rate under paragraph (1) by the annual applicable rate in each of the following subparagraphs and the tax rate under paragraph (1) shall

1. The year 2006: 70/100;

(6) 【Return and payment of comprehensive real estate holding tax” under Article 16 of the Comprehensive Real Estate Holding Tax Act (i) The taxpayer shall report the tax base and tax amount of comprehensive real estate holding tax to the head of the competent tax office having jurisdiction over the place of tax payment (hereinafter “head of the competent tax office”) from December 1 to December 15 of the relevant year

(2) A taxpayer who has reported pursuant to paragraph (1) shall pay comprehensive real estate holding tax to the head of the competent tax office, the Bank of Korea or communications agency within its report deadline.

C. Facts and determination

(1) According to the materials presented by the agency, on June 1, 2006, which is the assessment basis date of comprehensive real estate holding tax for 2006, the claimant and wife KimO owned the key real estate and whose tax base (1,136,00,000) of the housing subject to property tax for one household exceeds 600 million won. Thus, the claimant who is the principal housing owner has filed a request for correction with the agency after filing a return and payment on December 5, 2006, which is within the reporting deadline of comprehensive real estate holding tax for 2006, but the agency notified the rejection of the request for correction.

(2) The claimant asserts that since the Act on Comprehensive Real Estate Holding Tax, which is the basis of taxation of such Comprehensive Real Estate Holding Tax, violates the Constitution, the rejection disposition of this case should also be revoked.

(3) Article 55(1) of the Framework Act on National Taxes provides that “Any person whose rights or interests are infringed by being illegally or wrongfully subject to a disposition under this Act or other tax-related Acts or by failing to obtain the necessary disposition,” which is not in violation of the tax-related Acts, shall not constitute grounds for objection to a request for national tax trial.”

(4) Therefore, it is not necessary to determine whether the Comprehensive Real Estate Tax Act, which is the basis for the disposition of refusal, is in violation of the Constitution. Thus, unless the Constitutional Court declares that this Act is unconstitutional, the disposition of refusal against the claimant's request for correction based on the Comprehensive Real Estate Tax Act is legitimate (OOOOOOO and OOOOOOOOOOOOOOOOOOOOO).

4. Conclusion

This case's request for a trial is without merit, so it is decided as ordered in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes.