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(영문) 이 건 재산세 등의 과세처분이 헌법에 위배되므로 헌법재판소의 결정에 따라 새로 개정되는 법령을 적용하여 산출한 금액으로 경정하여야 한다는 청구주장의 당부
조세심판원 조세심판 | 2017-09-29 | 조심2017지0457 | 지방
【Request Number】

[Request Number] Trial 2017 0457 ( September 29, 2017)

[Items]

[C] Property [Types of Determination]

[Summary of Decision]

[Summary of the Supreme Court Decision 208Hun-Ga46 delivered on May 1, 2008, held that the Supreme Court Decision 2008Hun-Ga4 delivered on May 1, 2008 held that the Supreme Court Decision 2008Da114669 delivered on May 2, 2008 held that the Supreme Court Decision 208Da17711 delivered on May 2, 2008 held that the Supreme Court Decision 208Da1189 delivered on May 2, 200

[Related Acts]

[Related Acts and subordinate statutes] Article 111(1)1(c)2 of the Local Tax Act

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A.OO, etc. (hereinafter referred to as "OO, etc.") deemed land (land subject to taxation under attached Form 1; hereinafter referred to as "land for golf course use") under Article 106 (1) 3 (c) of the Local Tax Act as land for golf course use under Article 106 (1) 3 (c) of the Local Tax Act and imposed property tax, etc. (hereinafter referred to as "property tax, etc.") calculated by applying the tax rate (40/1,00) under Article 111 (1) 1 (c) (ii) of the Local Tax Act to the applicant corporation as of June 1, 2016.

B. The claimant corporation has filed an appeal in accordance with the attached Table 1.

2. Claims by the requesting corporations and opinions of the disposition authorities;

A. The claimant corporation's assertion

(1) Article 11 (1) 1 (c) (ii) and Article 111 (1) 2 (a) of the Local Tax Act (hereinafter “Disputed Provisions”) provide that the property tax rate of 40/1,00 of the tax base shall be applied to land and buildings for membership golf courses pursuant to Article 13 (5) of the same Act. In the case of public golf courses, Article 106 (1) 2 (b) and Article 111 (1) 1 (b) and 2 (c) of the same Act and Article 101 (3) 9 of the Enforcement Decree of the same Act provide that the property tax rate of 0.2% and 0.4% shall be applied to land subject to separate taxation, and buildings shall be 0.25% of the tax base.

(2) Article 11(1) of the Constitution declares that all citizens shall be equal in front of the law. The same principle of equality is identical to that of the above principle of equality, and the other is different from that of the above principle of tax law to realize the tax justice in the legislative process or enforcement process of the tax law (see Constitutional Court Order 89Hun-Ma38, Jul. 21, 1989). However, a considerable period of time has elapsed since the introduction of the heavy taxation system of private property on golf courses in 1973, 40 years has passed since many people enjoy golf, and now many people have grown into public sports rather than enjoying golf. Since 190, it is reasonable to deem that the public golf course, which was included in the first imposition of heavy taxation since 190, was excluded from the public golf course, and even though it seems that there is no essential difference between the operation of the membership golf course and the public golf course, it is reasonable to deem only the discrimination between the members of the golf course and the public under Article 1 of the Constitution.

(3) The principle of no taxation without law, based on Articles 38 and 59 of the Constitution, requires not only the formal aspect of the principle of no taxation requirements and the principle of no taxation requirements to be clear, but also the substantial aspect of the purpose or content of the tax law to be consistent with the constitutional ideology of guaranteeing fundamental rights and the constitutional principles supporting such principle. Therefore, when a tax-related law violates the principle of no taxation without law to guarantee fundamental rights, it is not permitted under the Constitution notwithstanding the citizen's liability to pay taxes. In a case where a tax-related law violates a citizen's property right, such as property tax heavy taxation, the imposition of taxes, which is a means, within the relationship with the special policy purpose pursued by the pertinent tax, should not be limited to the extent appropriate for accomplishing the policy purpose and necessary, to the extent that the imposition of taxes, which is a means, goes against the principle of no taxation without law to ensure excessive prohibition (Article 206Hun-Ba12, Nov. 13, 2008).

(b) Opinions of disposition authorities;

The determination of whether the provisions of Article 111 (1) 1 (c) (ii) of the Local Tax Act, which serve as the basis for the imposition of property tax, are in violation of the Constitution, is in violation of the jurisdiction of the Constitutional Court, and even if the Constitutional Court's request for adjudication on the constitutionality of the above provisions is in the current trial at the Constitutional Court, it is justifiable to impose the property tax on the requesting corporation pursuant to Articles 106 (1) 3 and 111 (1) 1 (c) (ii) of the Local Tax Act, since the Constitutional Court has not yet decided that the above provisions are unconstitutional.

3. Hearing and determination

(a) Points in dispute;

As the disposition of imposing property tax, etc. violates the Constitution, the legitimacy of the petition seeking correction to the amount calculated by applying the statutes newly amended according to the decision of the Constitutional Court.

(b) Relevant Acts;

(1) Constitution

Article 11(1) All citizens shall be equal in front of the law. No person shall be discriminated against in any political, economic, social or cultural life on account of gender, religion or social status.

Article 23(1) The property rights of all citizens shall be guaranteed. The contents and limits thereof shall be determined by Acts.

(2) A property right shall be exercised to conform to the public welfare.

All citizens under Article 38 shall have the duty to pay taxes under the conditions as prescribed by Acts.

Article 59 Items and rates of taxes shall be determined by Acts.

(2) Local Tax Act

(5) The amount of acquisition tax where real estate, etc. falling under any of the following subparagraphs (including cases where a person acquires part of a villa, etc. separately from an overconcentration control region) shall be the amount calculated by applying the tax rates under Articles 11 and 12 plus 400/100 of the base rate for heavy taxation:

2. Golf courses: Land, buildings and standing timber on the land subject to divisional registration among real estate for membership golf courses under the Installation and Utilization of Sports Facilities Act;

Article 106 (Classification, etc. of Objects of Taxation) (1) Objects of property tax on land shall be classified as objects of general aggregate taxation, special aggregate taxation and objects of separate taxation according to the following subparagraphs:

3. Objects of separate taxation: Any of the following land owned by a person liable to pay tax as of the tax base date:

(c) Land prescribed by Presidential Decree as a site for a golf course under Article 13 (5) (the latter part other than the subparagraphs of the same paragraph shall not apply), and for a high-class recreation center under the same paragraph;

Article 111 [Tax Rate] (1) The amount of property tax shall be calculated by applying the following standard tax rates to the tax base under Article 110:

1. Land:

(c) Objects of separate taxation;

(b) Land for golf courses and high-class recreation centers: 40/1000 of the tax base; and

C. Facts and determination

(1) According to the review materials submitted by the applicant corporation and the agency, the following facts are revealed.

(A) As of the tax base date of property tax (6.1.) in 2016, the disposition authorities considered this case’s land owned by the applicant corporation as land for golf course use under Article 106(1)3 of the Local Tax Act and imposed and notified this case’s property tax on the applicant corporation as shown in attached Form 1.

(B) In the order of the decision on the recommendation of adjudication on the constitutionality of statutes by the Suwon District Court (U.S. District Court Order 2014Do10414 Decided October 19, 2016), Article 111(1)1(c)(ii) of the Local Tax Act states that the part “40/1,000 of the tax base: Land for golf course: 40/1,00 of golf course: 1,00 of the tax base)

(2) Article 106(1)3 (c) of the Local Tax Act provides that the land for the membership golf course under Article 13(5) of the same Act shall be subject to separate taxation, and Article 111(1)1 (c) (ii) of the same Act provides that the tax rate of 40/100 of the tax base shall be applied to the land for golf course.

(3) In full view of the above facts and relevant laws, the claimant corporation asserts that the provisions of Article 111(1)1(c)(ii) of the Local Tax Act are contrary to the constitutional equality principle under the Constitution, and that the imposition of property tax (40/1,00) on this case’s land is contrary to the principle of guaranteeing people’s property rights and ensuring tax equality, so this case’s property tax, etc. should be revised by the law newly amended by the Constitutional Court’s decision; however, the claimant corporation asserts that the provisions should be amended by the law

In this case, the local tax law related to the disposition of imposition of this case has not been confirmed to be illegal or unconstitutional until the date of the trial, and the issue of whether the relevant law is unconstitutional or not is determined by the Constitutional Court, and it is not the matter to be decided by the Korean Constitutional Court.

4. Conclusion

This case shall be decided as ordered by Article 96 (4) of the Framework Act on Local Taxes and Article 81 and Article 65 (1) 2 of the Framework Act on National Taxes on the grounds that the petition for adjudication is groundless as a result of the deliberation.

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