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(영문) 회원제골프장용 토지에 대한 재산세 중과가 헌법상 평등원칙과 재산권보장 원칙에 위배된다는 청구주장의 당부
조세심판원 조세심판 | 2014-06-26 | 조심2014지0072 | 지방
[Case Number]

[Case Number] High Court Decision 2014No072 (Law No. 26, 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), the disposition agency imposed and collected property tax and local education tax on the land for golf courses owned by the claimant corporation (hereinafter referred to as “point real estate”) as indicated below.

B. The applicant filed an appeal on December 2, 2013.

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 1989, a golf course is deemed to be sports facilities such as skiing ground, tennis ground, and camping ground. Despite the fact that the golf course was exempted from the digging field, 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 a golf course with maintaining the heavy taxation structure that was imposed on a private facility under the past Emergency Measures Act for a golf course.

(B) Examining the current status of membership system and popular taxation history of golf courses and the history of discrimination taxation, notwithstanding the current status of membership golf courses, it is a sports facility subject to the Installation and Utilization of Sports Facilities Act along with a skiing ground, swimming pool, bowling ground, etc., unlike other sports facilities, even though the current status of membership golf courses is subject to the Act on the Establishment and Utilization of Sports Facilities, it is imposed on the current status of membership golf courses by applying heavy taxation rate by stipulating only membership golf course facilities as a private property continuously and by applying the heavy taxation rate to the current status of membership golf course and public golf course.

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, from the Local Tax Act amended on March 12, 1973 as amended on March 12, 1973 classified golf courses into private property, and began to impose heavy taxation (4/1,000) on land of all golf courses except for golf practice ranges and bee non-golf golf courses, by double (2/1,000) of the general tax rate (2/1,00);

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 the scope of the Emergency Measures was implemented for 15 years until 1989 when the Local Tax Act was amended in order to introduce the aggregate land tax by reducing the subject of heavy taxation.

(5) As the Local Tax Act (Article 84-3(1)) provides that “land and buildings in all golf courses other than golf practice ranges” in the Enforcement Decree of the Local Tax Act (Article 84-3(1)) shall be subject to heavy taxation, the provisions of the Local Tax Act (Article 84-3(1)) provide that “land and buildings in all golf courses other than golf practice ranges” which were excluded from the previous subject of heavy taxation shall be included again “forest land, the boundary of which is obvious among land in golf courses,” one time, which has not been implemented;

(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, land is excluded from heavy taxation, not only from landscaping (including natural conditions) but also from heavy taxation, but also from heavy taxation, as land is excluded from heavy taxation subject to heavy taxation of public golf courses in 17 years since 1973.

7) On May 28, 1996, the Enforcement Decree of the Installation and Utilization of Sports Facilities Act was amended to exclude buildings, etc. not directly used for the purpose of golf courses, such as a swimming pool, tennis court, driving range, training facility, sewage treatment facility, and solar heat use facility, from subject to heavy taxation of local taxes, as it excludes buildings, etc. not directly used for the purpose of golf courses from subject to registration, except for the natural condition under which landscaped (b) was created, after changing the form and quality of the land due to forest damage, diversion of farmland, etc. to create the landscape for the creation of the golf course.

8. The Local Tax Act amended on January 5, 2005 changed the name of the comprehensive real estate holding tax, which was in force since 1990, into the comprehensive real estate holding tax, which was a national tax, and changed the ownership price of land into a dualization. As to the portion exceeding a certain amount, the comprehensive real estate holding tax, which was a national tax, was imposed as a global real estate holding tax. Meanwhile, the Local Tax Act was amended to impose property tax on all land, while the amount of property tax was reduced to 50/1,000 of the heavy tax rate of property tax on golf courses maintained for 32 years, and the amount was reduced to 40/1,00, which was a measure to temporarily ease the rapid increase of the tax burden due to the realization of the tax base.

9. As part of measures to advance the service industry in September 26, 2008, property tax rate has been temporarily lowered from 4 to 2 percent for a two-year period for a membership golf course in areas other than 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) in facilities, users, and usage fees, etc. without any discrimination, it violates the principle of equality and the principle of excessive prohibition, and unlike gambling facilities such as gambling grounds and high-class recreation centers, golf courses are general sports facilities provided for in the Installation and Utilization of Sports Facilities Act, and are inevitably required to use large-scale land due to its industrial characteristics. However, the golf courses provided by a direct sports team are subject to property tax at a high rate (4%) by treating them as private property identical to a gambling place or high-class recreation center, and the provisions that impose comprehensive real estate tax at a high rate (2%) of forests and fields around the course, which are mandatorily owned under the law, violate the principle of equality.

(E) The original preservation is different from the development site of golf courses, etc., which is substantially realized by the compulsory provisions 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 forest preserved in its original form, it is deemed that “the following forests are excluded: Provided, That the forests and fields for membership golf courses under the Installation and Utilization of Sports Facilities Act are excluded: the forests and fields for membership golf courses under Article 12 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act, and the forests and fields, the original form of which is preserved among the land for skiing grounds and golf courses under Article 12 of the Installation and Utilization of Sports Facilities Act,” the said “a” provides that the application of the said tax rate is different from those of the forests, the role or form of which is to preserve in its original form.

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 regard land which is to be held in compulsory and essential under the Installation and Utilization of Sports Facilities Act as land normally used for business and be included in the special aggregate taxation. However, without considering in-depth consideration about it, it is necessary to include it in the general aggregate taxation and to pay taxes en bloc by being included in the general aggregate taxation for non-business use, and the discrimination taxation with the same mass system is in violation of the principle of equality prescribed by the Constitution.

(F) Even if the case is not in a foreign country, the difference between the membership golf course and the public golf course currently established and operated in Korea is due to the use of the method of borrowing money from the members (individual or corporation) without collateral and offering convenience (such as reducing usage fees) equivalent to the interest thereof, it becomes a membership golf course. On the other hand, if a golf course is constructed with a long-term loan from members or funds borrowed from one’s own funds or bank, it cannot be found that the difference between each facility of a membership golf course and a public golf course combined with a public golf course is not found. In addition, in recent years, the membership golf course was operated as a membership system and transferred to the public by returning membership fees to the members, or since the establishment of a public golf course from the beginning, the number of golf courses with higher usage fees than the membership system is increasing.

Even though the reality is that the national income per capita was less than 20 years, it is clear that the current heavy taxation system of property tax is very wrong if it is not only unreasonable, but also there is no country that imposes heavy taxation on golf clubs, which is introduced to convert the capital used for the construction of golf courses into the capital of social infrastructure facilities or production facilities according to the circumstances of the country's economy and society.

Furthermore, when revising the Local Tax Act in 1990, public golf courses are excluded from heavy taxation, and they continue to be subject to heavy taxation more than 10 times even before the present, with respect to membership golf courses with no difference in all respects, which are dealt with differently, and the same 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 a taxpayer’s right to use, profit-making, or disposal 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, 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 taxpayers have private usefulness and right to dispose of property rights, which is the essential substance of property rights, to the extent that taxpayers remain. The short period of time is in fact collected as the whole as the land value tax, so it shall not bring about the effect of gratuitous forfeiture of the land property rights (see Constitutional Court Decision 99Hun-Ba3 (see Constitutional Court Decision 234-15(2)3, Apr. 29, 199; Supreme Court Decision 201Hun-Ba134,4130,25).

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 if the real estate holding tax is not imposed in excess of the scope of use and profit-making, it can be said that the private utility and disposal right, which is the essential substance of the property right, can be imposed only on the taxpayer only to the extent that the taxpayer remains, and, in theoretical sense, 50% of such profit should remain in the number of the taxpayers. In light of these standards, it is determined that there exists a unconstitutionality in the event that the assessed tax amount exceeds 50% of the expected profit. Thus, the annual average annual payment of one golf course is 1.25 billion won, and the annual average payment of one golf course is 5.79 million won, and this is unconstitutional in the event that the amount of tax imposed exceeds 50.7% and the anti-amount tax principle is applied.

(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, minimum of infringement of rights and balance of legal interests should be ensured. However, it is against the principle of excessive prohibition under the Constitution to impose property tax on a lump sum 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.

Although tax law should be established in light of the constitutional value and social norms, the provisions related to property tax under the Local Tax Act currently in force should be a common and reasonable level in light of the constitutional value and social norms, the provisions stipulate that property tax shall be set at a higher level of fruit that can not be compared compared to the surrounding land only for the reason that the golf course operator, such as a claimant corporation, etc. owns the land, etc., and so far as the developed country has reached the large scale of the developed country by making too much change and development so far, the property tax is imposed as heavy taxation on sports facilities, which amount to 10 to 20 times the general property in the sports facilities, and as well as to the extent that taxpayers are unable to reduce according to the general aggregate taxation for non-business purposes, such as the land for which ownership is enforced by law.

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 the purpose of speculation, are unconstitutional because it violates the equality rights, property rights, and the principle of prohibition of excessive restriction stipulated in the Constitution.

(b) Opinions of disposition agencies;

(1) As to the violation of fair taxation, which is the constitutional equality principle

(A) Korea’s land area is so narrow that the population density is world highest (excluding urban countries, such as macaro and Morocco). However, as the area of the golf course can be known in the area of the golf course, the construction of a golf course is required as much land is necessary, and there is side effects such as forest damage and destruction of the ecosystem in the construction process, and a large amount of agricultural chemicals spread to maintain the golf course after completion, which causes a continuous environmental pollution. It is natural to impose taxes on golf courses more than commercial facilities or other sports facilities than commercial facilities, or other sports facilities.

(B) On the other hand, a public golf course is allowed to collect most of the investment costs with deposits paid by its members. On the other hand, a public golf course operator is required to bear the investment cost. Since the golf course price of a national golf course reaches 10 million won, only some of the persons with extensive financial power can purchase golf membership. On the other hand, in a membership golf course, a member has a high-priced membership, giving any benefits that may not be compared with a non-member in the reduction of the usage cost or the reduction of the use fee of a golf course. On the other hand, a public golf course can be used at the same cost without any restriction on its use. Thus, since a public golf course is more than a membership golf course, a public golf course operator’s investment cost is more and more than a membership golf course is high, and thus, it is necessary to maintain a policy to supplement such difference, such as taxes, etc. to supplement such difference.

(C) In terms of the scale of land use and the occurrence of social costs, golf courses are considerably different from commercial facilities or other sports facilities, and in terms of the scale of investment and membership of a business operator, there is a difference between a membership golf course and a public golf course. Therefore, the imposition of property tax on land for membership golf courses does not violate the principle of equality under the Constitution, and rather, it rather accords with substantial equality.

In the Constitutional Court's decision (96HunBa64, February 25, 199), "The heavy acquisition tax system on the golf course is a system to restrain the consumption and acquisition of the safic property, and it is judged that the scope of the tax burden on the safic property is determined as belonging to the authority of the legislator in determining the scope of the tax burden on the safic property, even in cases where it is determined that there is a saficity of any facility, which is subject to the preferential taxation, and which is subject to the burden on it. However, it is determined that the legislators have the authority to make broad policy decisions on what scope of the safic property is subject to the saficity of the use of the facility, the degree of damage to the green area and environment, and the awareness of the general public."

(2) As to the infringement of constitutional property rights

(a)The most recent membership golf course operations are difficult, but this is not due to heavy taxation of property tax which remains for about 38 years, but due to the deterioration of the business environment due to the business environment due to the reduction of users due to the athletic ties, the increase of public golf course, etc., and even though about 230 membership golf courses are still in operations, heavy property tax is not sufficient to make it impossible to operate the golf course, and it cannot be deemed that the excessive taxation of property tax or the total sum of preserved forest land infringes on the guarantee of property rights under Article 23, Section 1 of the Constitution.

(B) In the Constitutional Court’s decision (amended by Act No. 96HunBa64, Feb. 25, 1999), it is difficult to view that only the heavy acquisition tax has a decisive impact on whether or not the profit or loss of a golf course has occurred, and the issue of whether or not the profit or loss has occurred, like other companies under the free market economic order, shall eventually come to the issue of the rationality of economic choice and the efficiency of corporate management, and therefore, it is only the matter of autonomous economic choice of a business entity, and it cannot be deemed that the golf course business is legally or factually prohibited, and therefore, the heavy property tax does not infringe on the freedom of occupation or the essential contents of property right under the Constitution.

Therefore, Article 111 (1) 1 (c) of the Local Tax Act and Article 106 (1) 2 (b) of the Enforcement Decree of the same Act and Article 101 (3) 13 of the same Act do not violate the principle of equality under Article 11 (1) of the Constitution and do not infringe on the guarantee of property rights under Article 23 (1) of the Constitution and the restriction on property rights under Article 37 (2) of the same Act, so the imposition of property tax, etc. based on the above Local Tax Act, is legitimate.

3. Hearing and determination

(a) Points in dispute;

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

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

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

C. Facts and determination

(1) As of the tax assessment basis date of property tax in 2013 ( June 1, 2013), the disposition agency imposed and collected the property tax (land portion) and local education tax on the key real estate, which is land for membership golf courses owned by the applicant corporation.

(2) Articles 106(1)3 (c) and 111(1)1 (c)2 of the Local Tax Act provide that the property tax rate of 40/1,00 for land, buildings, and standing timber on the land subject to separate registration among real estate for membership golf courses under the Installation and Utilization of Sports Facilities Act shall be applied to land, buildings, and standing timber on the land. Article 106(1)2 (b) of the Local Tax Act and Article 101(3)13 of the Enforcement Decree of the same Act shall be classified into general aggregate taxation for forest land preserved in its original form.

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

The applicant corporation claims that the relevant provisions of Article 111 (1) of the Local Tax Law and the relevant provisions of Article 101 (3) of the Enforcement Decree of the same Act, which stipulate that the original preservation of the golf course held by the law in its possession is subject to general aggregate taxation, such as non-business land for the purpose of speculation, are unconstitutional because it violates the equality rights, property rights, and the principle of prohibition of excessive restriction as stipulated in the Constitution.

Whether the disposition disposition is against the tax law, not the specific disposition made by the disposition disposition, but the law based on the disposition is in violation of the Constitution is not against the tax law, and it does not constitute the matter to be judged by our original state beyond the scope of a request for a tax trial due to the jurisdiction of the Constitutional Court. In addition, unless the Constitutional Court made a decision of unconstitutionality on the relevant legal provisions of this case, the disposition that the disposition disposition agency imposed the property tax, etc. on the basis of the Local Tax Act is judged to have not been otherwise erroneous (the same purport is the same as the first instance judgment

Therefore, unless the Constitutional Court decides that Article 111 (1) 1 (c) of the Local Tax Act and Article 106 (1) 2 (b) of the Enforcement Decree of the same Act and Article 101 (3) 13 of the same Act, which stipulate that the property tax shall be subject to general aggregate taxation for the membership golf course at the rate of 40/1,00, are contrary to the equality principle under Article 11 (1) of the Constitution and infringe on the guarantee of property rights under Article 23 (1) of the Constitution, the imposition of property tax, etc. based on the above Local Tax Act is legitimate.

4. Conclusion

This case shall be decided as ordered by Article 123 (4) of the Framework Act on Local Taxes and Article 81 and Article 65 (1) 2 of the Framework Act on National Taxes because the petition for adjudication is groundless as a result of the review.

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