The rejection disposition such as comprehensive real estate holding tax on forest land preserved in its original form is legitimate.

The Comprehensive Real Estate Tax Act itself is not unconstitutional but does not violate the principle of no taxation without law and the principle of no comprehensive delegation prohibition, and does not infringe on the equality and freedom of occupation selection under the Constitution.

Article 11 of the Gross Real Estate Tax Act; Article 182(1) of the former Local Tax Act

208Guhap3444, revocation of revocation of revocation of comprehensive real estate holding tax

○○ Co., Ltd.

○ Head of tax office

April 26, 201

June 7, 2011

1. The plaintiff's claim is dismissed.

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

The defendant's rejection disposition against the plaintiff on November 28, 2007 against the plaintiff of the comprehensive real estate holding tax in 2005 and 2006 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a company running the “○○ccc” (hereinafter “instant golf course”) which is a membership golf course in the “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ (hereinafter “instant golf course”). 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, Feb. 29, 2008; hereinafter the same), the Plaintiff paid KRW 138,471,890, comprehensive real estate tax for rural development tax for the year 2005, and comprehensive real estate holding tax for the year 27,694,378, and comprehensive real estate holding tax for rural development tax for the year 2006 on December 12, 206.

B. On October 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, etc. should be refunded. On November 28, 2007, 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 February 19, 2008, but was dismissed on May 30, 2008.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1-1 and 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 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.

(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 taxable objects shall be classified into general aggregate taxation, special aggregate taxation, and separate taxation; subparagraph 1 provides that "land excluding land subject to general aggregate taxation, which is subject to separate taxation or separate taxation;" subparagraph 2 provides that "land of a building prescribed by the Presidential Decree, which is owned by a person liable to pay tax as of the tax base date, and land prescribed by the Presidential Decree, which has considerable reasons for being subject to separate taxation." Of the above provision, Article 182(1) of the former Local Tax Act comprehensively delegates its contents to subordinate statutes even though it is an important provision concerning the distinction between general 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.

(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) excludes forests and fields in land for a membership golf course from the separate taxation. The above provision deals with forests and fields in land for a membership golf course to the same extent as land for sports facilities in which the nature of the forests preserved in the original form of the golf course is different from land for a sports facility where profits are created and land for non-business use for the purpose of speculation. On the other hand, the above provision treats forests in the same nature as land for a golf course

(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 impact on the profit or loss of the golf course.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

(1) Judgment on the assertion that the statute was based on unconstitutional

(A) We examine the argument that the Gross Real Estate 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 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 a conflict or inconsistent with the concept of tax under the Constitution (see Constitutional Court en banc Decision 9Hun-Ba3, 46 (Merger), Feb. 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) We examine the allegation that the statutory provisions of this case violate the principle of no taxation without law 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 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 subjects is professional, technical, and variable, so it is necessary to delegate its subordinate laws and regulations. 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 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 Decision 2008Hun-Ga27, 2008Hun-Ba153, 365 (merged) Decided December 28, 2010). 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 this 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 legislative person may consider various perspectives for the national economy, financial policy, and social policy achievement (see Constitutional Court Order 2002Hun-Ba43, Oct. 31, 2002).

The provisions of the Enforcement Decree of this case treat the "forest for preserving the original form of a golf course" to 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 preserving the original form of a golf course" is to be legally owned for the golf course operation, which is to bring effects to separate it from a hole or an outer area, and to prevent accidents, and increases its utility by creating and maintaining beautiful landscape of a golf course, and thereby raising its utility jointly with a golf course, it is essentially the same as "land for sports facilities where profit is created", and it is not essentially different from the "a simple forest connected to a golf course," which is irrelevant to a golf course business," and Article 131-2 (3) of the former Enforcement Decree of the Local Tax Act which does not belong to land for public golf course or land for a membership golf course within 20 years prior to the amendment by Presidential Decree No. 19817, Dec. 30, 2006.

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.

(B) We examine whether the instant enforcement decree provisions infringe on the freedom of occupation.

It is difficult to view that only heavy taxation on the preserved forest land of the original form of a golf course does not have a decisive impact on whether it has accrued a golf course or not, and as well as other companies under the free market and economic order, the issue of whether it has accrued a profit or loss depends on the rationality of economic choice and efficiency of the business management. Therefore, even if the gross real estate holding tax on the preserved forest land of the original golf course is considerably liable for such economic burden, it would eventually result in an economic choice as to whether it would not acquire a golf course and operate a golf course even if it bears such economic burden, and the comprehensive real estate holding tax itself does not legally or actually prohibit the operation of the golf course business, and therefore, the provision of the Enforcement Decree of the instant case cannot be deemed as infringing on the freedom of occupation (see, e.g., Constitutional Court Order 9HunBa64, Feb. 25, 199)

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.