2010Nu31715 Revocation of comprehensive real estate holding tax, etc.

000 Stock Company

00.Si 00 00 Do 000 - 0

Representative Director 100

Law Firm Governing Province, Attorney Lee Jae-won

Attorney Kang Jin-young, Dok-hee, Kim Jong-soo, and Park Jin-jin

100 director of the tax office

A litigation performer shall have full capacity to do so.

Suwon District Court Decision 2008Guhap1895 Decided August 30, 2010

March 30, 2011

April 13, 201

1. The plaintiff's appeal is dismissed.

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

The judgment of the court of first instance shall be revoked. The defendant's decision on June 27, 2007 (No later than June 26, 2007, written in the complaint) is erroneous.

The rejection disposition of the comprehensive real estate holding tax for 2006 against the Plaintiff is revoked.

1. Details of disposition;

A. From 00:00 00 :00 00 :00 - 00 , the Plaintiff is a company running “CC (hereinafter “instant golf course”). On December 15, 2006, the Plaintiff reported to the Defendant on December 15, 2006, 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 “former Local Tax Act”); (hereinafter “forest in its original form”) prior to the original report of comprehensive real estate holding tax (hereinafter “forest”) by classifying it as general aggregate taxable items, and paid KRW 814,292,299, special rural development tax, 162, 858, 459, and 459.

B. On May 16, 2007, 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. On June 27, 2007, the Defendant rendered the instant disposition rejecting the above request for correction against the Plaintiff.

C. The plaintiff, who is dissatisfied with the disposition of this case, filed a tax appeal on September 21, 2007, but filed a request for the tax appeal on 2007.

11. The dismissal was made on 29.

【Ground for Recognition: Facts without dispute, Gap evidence Nos. 1, 2, 4, 6, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings】

2. Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

3. The plaintiff's assertion

A. The assertion that the law 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.

1) 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.

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

B. The instant disposition, which asserted that the former Enforcement Decree of the Local Tax Act is unconstitutional or unlawful, is unlawful as it is based on the following unconstitutional or unlawful enforcement decree.

1) Violation of the equality principle

In Article 131-2 (3) 14 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19817, Dec. 30, 2006; Presidential Decree No. 20887, Jun. 25, 2008; hereinafter referred to as the "Enforcement Decree of the Local Tax Act after the amendment), forest land for a public golf course is excluded from special aggregate taxation when it is determined as land for a public golf course. The above provision deals differently with forest land for a public golf course and forest land for a public golf course without reasonable grounds; (2) forest of a public golf course with different character of preserving its original form is treated equally as land for a sports facility where profits are created; and (3) it is contrary to the principle of equality under the Constitution.

2) 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 due to the significant impact on the profit or loss of the golf course.

(c) The assertion that the officially announced value is mistakenly calculated.

In the calculation of the officially assessed land price as the officially assessed land price applied to the preserved forest for the original form of this case is too high than the market price. The disposition of this case, which deemed the erroneously calculated land price lawful, shall be deemed unlawful.

A. Judgment on the assertion that the statute was based on the unconstitutionality

1) First, regarding the assertion that the Comprehensive Real Estate Tax Act itself infringes on the essential contents of property rights or provides for the taxation of unrealized profits, etc. When imposing taxes, it is deemed that the imposition of taxes, such as property tax, which is imposed on itself, is justifiable under the Constitution. However, the basis, scope, or limitation of the imposition of the taxes is merely problematic. Comprehensive Real Estate 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 taxes from the tax base of the Comprehensive Real Estate Tax. In full view of the fact that the regulations on Comprehensive Real Estate Tax do not infringe on the essential contents of property rights or violate the excessive prohibition or equality principle (see Constitutional Court en banc Decision 2006Hun-Ba12, Nov. 12, 2008; 2007Hun-Ba71,88, 94, 2008Hun-Ba3, 62, 208Hun-Ba12, 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 any inconsistency or inconsistency with the concept of tax under the Constitution (see Constitutional Court en banc Decision 99Hun-Ba3, 46 (Consolidation) 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 separately established the tax items on 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. The comprehensive real estate holding tax does not constitute capital gains tax and double taxation.

The above assertion made by the Plaintiff is without merit.

2) Next, we examine the allegation that the instant legal provision violates the principle of no taxation without representation 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 complying with the principle of no taxation without law, detailed matters that must be followed by changes in economic reality or development of professional technology need to 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 is necessary to utilize them for normal economic activities as a common appearance of the relevant land. However, when determining whether certain land is included in the separate aggregate taxation in relation to a specific economic activity, various variables, such as the relevant economic activity and land relevance, and the appropriate size of the land owned according to the type of business, should be considered. Furthermore, the issue of whether certain land is subject to the separate aggregate taxation should be flexibly and flexible in response to changing economic conditions, changing the direction of land policies, and changing 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 to subordinate laws and regulations. Article 182 of the former Local Tax Act provides that "land prescribed by Presidential Decree, which has a reasonable ground to impose a separate aggregate taxation by taking into account the above points, is "land prescribed by Presidential Decree." Thus, the provision of this case does not constitute a violation of the principle of no taxation without law or the principle of prohibition of comprehensive delegation (see Constitutional Court en banc Decision 2008HunGa27, 2008HunBa153, 365 (Consolidation) Decided December 28, 2010)."

The above assertion made by the Plaintiff is without merit.

B. Determination on the assertion that the former Enforcement Decree of the Local Tax Act is unconstitutional or unlawful

1) First, unlike forests within public golf course land, we examine the assertion that the provisions of the former Enforcement Decree of the Local Tax Act, excluding forests for membership golf course from land subject to separate taxation, violates the principle of equality.

Article 131-2 (3) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19817, Dec. 30, 2006; hereinafter referred to as the "Enforcement Decree of the Local Tax Act prior to the amendment") which sets forth the scope of land subject to special aggregate taxation pursuant to Article 182 (1) 2 of the former Local Tax Act provides land for sports facilities among the essential facilities to be installed by a public sports facility business operator under the Installation and Utilization of Sports Facilities Act according to the standards for public sports facilities, as one of the "land prescribed by Presidential Decree", which has a considerable reason to be subject to separate aggregate taxation pursuant to Article 131-2 (3) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19817, Dec. 30, 2006.

After the amendment by Presidential Decree No. 19817 of Dec. 30, 2006, the Local Tax Act enacted Article 131-2(3)14 of the Enforcement Decree of the Local Tax Act which provides that forest land, the original form of which is preserved among the land for skiing ground and golf course under Article 12 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act, is stipulated as "land subject to separate taxation", but after the amendment, the forest land within the land for membership golf course under the proviso of Article 131-2(3)14 of the Enforcement Decree of the Local Tax Act was excluded from "land subject to separate taxation".

After amendment, Article 1, Paragraph 2 of the Addenda to the Enforcement Decree of the Local Tax Act provides that the above Enforcement Decree shall enter into force on January 1, 2007, and the previous provisions shall apply to the local taxes imposed, reduced, or exempted under the previous provisions at the time of the enforcement of the above Enforcement Decree.

Therefore, the Enforcement Decree of the Local Tax Act prior to the amendment applies to the comprehensive real estate holding tax for the year 2006 which the Plaintiff requested correction. According to Article 131-2(3) of the Enforcement Decree of the Local Tax Act prior to the amendment, both forests within land for membership golf courses and forests for public golf courses do not constitute land subject to separate taxation.

In addition, Article 131-2(3) of the Enforcement Decree of the Local Tax Act prior to the amendment is also inconsistent with the principle of equality in addition to the above argument made by the Plaintiff on the premise that the Enforcement Decree of the Local Tax Act is applied with respect to the return and payment of the comprehensive real estate holding tax in this case after the amendment. As seen earlier, Article 131-2(3) of the Enforcement Decree of the Local Tax Act excludes both forest land for membership golf courses and forest land for public golf courses from the land subject to separate taxation. The above provision does not differentiate between forest land for membership golf courses and forest land for public golf courses.

In addition, in light of the characteristics of the membership golf course with limited use to the general public and the characteristics of the national land, in which the membership golf course cannot be created if the area of land is short of the size of the land compared to the characteristics of the membership golf course and is not damaged to a considerable portion of the mountainous district and forest, it cannot be deemed as discrimination against the land stipulated by the special aggregate taxation under Article 132-2(3) of the Enforcement Decree of the Local Tax Act on the ground that the forest land for the membership golf course was not stipulated as the land for the special aggregate

The above assertion made by the Plaintiff is without merit.

3) We examine whether Article 131-2(3) of the Enforcement Decree of the Local Tax Act prior to the amendment infringes on the freedom of occupation. Even if Article 131-2(3) of the Enforcement Decree of the Local Tax Act does not specify forests and fields within land used for membership golf courses as land subject to separate taxation before the amendment, which is highly liable for comprehensive real estate holding tax on forest used for the original preservation of the original form of golf courses, 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 directly or practically prohibit the operation of the golf course business. The above provision of the Enforcement Decree cannot be deemed as infringing on the freedom of occupation (see Constitutional Court en banc Decision 96Hun-Ba64, Feb. 25, 199).

The above assertion made by the Plaintiff is without merit.

C. Determination as to the assertion that the officially announced value has been mistakenly calculated

Although it is alleged that the officially announced value applied to the forest land preserved in the original form of this case has been mistakenly calculated, it is not sufficient to recognize it solely with the statement No. 3, and there is no other evidence to acknowledge the above assertion. The above assertion by the Plaintiff is without merit

5. Conclusion

The judgment of the first instance is justifiable. The plaintiff's appeal is dismissed.

Justices Kim Jong-hwan

Judges Kim Jae-ho

Judges Lee Jong-tae