early 2009 middle 0520 ( October 24, 2009)

Whether the imposition of comprehensive real estate holding tax on forest preserved in its original form violates the Constitution

The original preserved forest shall comply with the Constitution that shall be subject to separate taxation without conditions, and the Plaintiff’s assertion that the membership golf course and the golf course located in the Seoul Metropolitan Area shall always be treated the same as the non-member golf course and the golf course located in the non-Seoul Metropolitan Area shall not be accepted.

The contents of the decision shall be the same as attached.

1. Each of the plaintiff's claims is dismissed.

2. The plaintiff bears the costs of lawsuit.

The defendant's rejection disposition against the plaintiff on December 29, 2008 against the plaintiff shall be revoked, respectively, in 2005, in 2006, and in 2007, with respect to the claim for rectification of comprehensive real estate tax belonging to the plaintiff.

1. Details of disposition;

A. The Plaintiff is a company that operates the ○○○○○-si ○○○○○-si 46-1, a membership golf course in △△-gu, a membership golf course (hereinafter “instant golf course”).

B. The Plaintiff classified the original preserved forest land in the instant golf course owned by it as a general aggregate taxation subject to comprehensive real estate holding tax and reported to the Defendant under Article 11 of the Comprehensive Real Estate Holding Tax Act and Article 182 (1) 1 and 2 of the former Local Tax Act (amended by Act No. 8864 of Feb. 29, 2008; hereinafter referred to as the “former Local Tax Act”). After that, the Plaintiff filed a request for correction of the purport that the Plaintiff classified the original preserved forest into general aggregate taxation subject to comprehensive real estate holding tax as a general aggregate taxation pursuant to the above constitutional and illegal laws and regulations and requests the Defendant to refund comprehensive real estate holding tax, etc., each of the instant dispositions against the Plaintiff refusing correction. The Plaintiff filed a request for a tax trial against the Plaintiff, but the Plaintiff was dismissed. The specific contents as indicated below are as follows (the comprehensive real estate holding tax for year 2007, 39, 268, 296, 296, 269, 2696).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, 3, Gap evidence 2, 3, and 4, the purport of the whole pleadings

2. Relevant statutes;

Attached Form 1. The entry in the relevant Acts and subordinate statutes are as follows.

3. Whether each of the dispositions of this case is legitimate

The issue and determination of the Plaintiff’s assertion, the instant case, and the instant judgment are identical to the entry of the legitimacy of the instant disposition on February 16, 2010 (on February 16, 2010, referring to the reasons for the judgment of the Jeonju District Court Decision 2009Guhap1607, and currently in the appellate court), and the addition are as follows: “Where the tax base and the amount of tax recorded in the tax base return (where any determination or correction is made pursuant to the tax laws, referring to the tax base and the amount of tax after such determination or correction) exceed those to be reported under the tax law” (see Article 45-2(1)1 of the Framework Act on National Taxes). As such, in the case of revocation of correction refusal, on the premise that it is possible to examine the unconstitutionality and illegality of the relevant tax law and the Enforcement Decree thereof, whether the Plaintiff’s

A. Whether the Comprehensive Real Estate Holding Tax Act is unconstitutional or not

Since the Gross Real Estate Tax Act was enacted on January 5, 2005 by Act No. 7328, there has been controversy over the unconstitutionality of the Gross Real Estate Tax Act, and it is obvious that it is still at present.

However, there is no final declaration that the comprehensive real estate holding tax law itself should be excluded in accordance with the procedures set forth in the Constitution and laws beyond the doubt and possibility of the unconstitutionality of the comprehensive real estate holding tax law after a considerable period of time has passed since the enactment date of the law.

In addition, Article 182 of the former Local Tax Act, which is a taxation on land, is Article 182 of the former Local Tax Act, and Article 182 of the former Local Tax Act continues to maintain its normative power after the establishment of June 16, 1989.

The application of the Comprehensive Real Estate Holding Tax Act itself cannot be ruled out comprehensively by comprehensively considering the constitutionality of the Comprehensive Real Estate Holding Tax Act, aside from the fact that legislation on the improvement of the comprehensive real estate holding tax system by reflecting the legitimate rights of landowners in the Comprehensive Real Estate Holding Tax Act (the legislation on the subject of taxation, tax base, tax rate, maximum tax burden, etc. has been continued, and its constitutional feasibility, completedness, and self-sufficiency has been strengthened) (see, e.g., Constitutional Court en banc Order 2006HunBa12, Nov. 13, 2008; Constitutional Court en banc Order 2008Hun-Ga27, Dec. 28, 2010).

(b) Specific land provided for 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; hereinafter referred to as the "former Enforcement Decree"), such as whether the land for membership golf courses under the Installation and Utilization of Sports Facilities Act is unconstitutional or illegal: Provided, That forest land provided for 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; hereinafter referred to as "land for membership golf courses") and land for golf courses under Article 131-2 (3) 14 of the same Enforcement Decree shall be excluded from land for which the original form is preserved among land for golf courses under the Installation and Utilization of Sports Facilities Act and land for golf courses under Article 131-2 (3) 12 of the Enforcement Decree of the same Act; b) and land for recreation facilities business under Article 208 of the Enforcement Decree of the Tourism Promotion Act:

"However, if the proviso of Article 131-2 (3) 14 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19817 of Dec. 30, 2006) (hereinafter referred to as "the proviso of this case") is unconstitutional or erroneous, the key issue of this case is unconstitutional or unlawful since each of the proviso of this case is unconstitutional or unlawful (the main issue of this case is whether all of the forest preserved in its original form, regardless of the area in the golf course, the method of operation of the golf course, and the method of operation of the golf course, are not provided for separate taxation, since all of the forest preserved in its original form, regardless of the method of operation of the golf course, is not provided for by Presidential Decree No. 19817 of Dec. 30, 2006).

From the standpoint of the Plaintiff, the instant proviso provisions cannot be easily accepted. However, the characteristic of a membership golf course recognized as property in addition to the provision of an opportunity for sports by attempting to discriminate from a public golf course, which is operated in a closed-type, not open-end. From the standpoint of the Plaintiff, the membership golf course characteristics, the original preservation forest (which means a reduction of forest land to be preserved in its original form) is also offered as a combination with the golf course, and the characteristics of the property are still maintained. Any person still has the characteristics of the forest land to be preserved in its original form as it is difficult to access the golf course boundary, and only the general public can access the forest to the original form preservation in light of the fact that no longer than the population comparison land size is sufficient, and considerable parts of mountainous districts and forests are not damaged, and the area of land to be incorporated into a closed-end golf course is considerably wide, and its original form preservation forest is not merely a part of the land subject to development activities, and the meaning of the instant proviso to the comprehensive real estate holding tax in its original form and form is not limited to the extent of the forest land subject to be excluded.

In full view of the provisions of Articles 188(1)1(c), 182(1)3(c), and 112(2) of the former Local Tax Act, and Article 20 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act, the separate taxation rate shall be 40/1,00 of the tax base (20/1,00 of the tax base amount for golf clubs in areas other than the Seoul Metropolitan area under Article 2(1) of the Seoul Metropolitan Area Readjustment Planning Act shall be determined as 40/1,00 of the tax base by classifying only the land subject to separate taxation (development areas such as golf courses) and the land that is not subject to separate taxation (undeveloped areas such as golf courses) and the land that is not subject to separate taxation. In light of the fact that the separate taxation rate of 40/1,000 of the Local Tax Act is already excluded from property tax, and that the separate taxation rate of 1,000 for the land subject to separate taxation shall be more than 30/1,000 of the Local Tax Act.

Therefore, the Plaintiff’s assertion that forest preserved in its original form conforms to the Constitution that should be subject to special aggregate taxation, and that the membership golf course and the golf course located in the Seoul metropolitan area conforms to the Constitution that should always be treated as the same as the non-member golf course and the non-Seoul metropolitan area.

(c) Other.

This case’s each disposition cannot be deemed unlawful solely on the grounds that the tax base applied is too higher than the market price, and that the tax assessment based on the officially announced land price can be directly contested, separate from the process of determining the officially announced land price.

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.