Suwon District Court 2009Guhap7852 ( November 09, 2011)

Early High Court Decision 2009Du0440 (No. 24, 2009)

Forest land required to be preserved in its original form in the membership golf course is legitimate;

The laws and regulations that are based on the rejection disposition of comprehensive real estate holding tax on forest land preserved in its original form in the membership golf course do not violate the principle of no taxation without law and the prohibition of comprehensive delegation, and there is no ground to find that the constitutional equality principle and the freedom of occupation have been infringed, and that the official

2011Nu453777 Revocation of revocation of a revocation of comprehensive real estate holding tax, etc.

XX Development Co., Ltd.

port of origin

Suwon District Court Decision 2009Guhap7852 Decided November 9, 2011

July 19, 2012

August 23, 2012

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

A. The defendant's rejection disposition against the plaintiff on December 4, 2008 such as ① Comprehensive Real Estate Holding Tax for the year 2005 and ② Comprehensive Real Estate Holding Tax for the year 2007 is revoked.

B. On November 20, 2008, the Defendant’s imposition of comprehensive real estate holding tax for 2008 and special rural development tax for 000 won for the Plaintiff on January 6, 2009, which was reduced and imposed by the Defendant as of January 6, 2009. ① Of 000 won, the above comprehensive real estate holding tax for 200 won, the part exceeding 00 won out of 00 won, which is part of the above special rural development tax, was revoked (the Plaintiff corrected and reduced the purport of the claim as to 1.2 'the above', 2 'b ' at the appellate trial).

2. Purport of appeal

A. Of the judgment of the court of first instance, the part against the plaintiff falling under the following order to revoke shall be revoked:

B. (1) The Defendant’s rejection disposition against the Plaintiff on December 4, 2008, including the comprehensive real estate tax for the year 2007, is revoked. (2) The Defendant’s imposition disposition against the Plaintiff on November 20, 2008 of the comprehensive real estate tax for the year 2008, the comprehensive real estate tax for the year 2008, the special agricultural and fishing villages tax for the rural development tax for the amount of 1.00 won which was reduced and imposed on January 6, 2009, and the amount exceeding 00 won is revoked.

1. Quotation of the reasons for the judgment of the first instance;

The reasons stated in this decision by the court are as follows. ① The defendant imposed 00 won of the comprehensive real estate tax for 2008 and special rural development tax for 200 won on Nov. 20, 2008 (hereinafter referred to as the "disposition in this case"). The plaintiff dissatisfied with this request and filed a request with the Tax Tribunal on Feb. 6, 2009, but the Tax Tribunal dismissed the request on Apr. 29. 2008. The defendant imposed 00 won of comprehensive real estate tax for 2008 and special rural development tax for 200 won on the plaintiff on Nov. 6, 2009. The plaintiff's appeal was dismissed on Nov. 200, 2000 won of the above comprehensive real estate tax for 200 won and special rural development tax for 200 won of the above comprehensive real estate tax for 200 won and 3000 won of the above additional comprehensive real estate tax for 40% of the amount of reduction of 1/2 of comprehensive real estate tax for 200.

2. Additional determination

A. The plaintiff's assertion

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; Presidential Decree No. 20887, referred to as the "Enforcement Decree of this case") which applies to the disposition rejecting correction of this case or the disposition of this case, which discriminates against the object of taxation by distinguishing it without reasonable grounds, even though there is no substantial difference between the original preservation of the membership golf course and the original preservation of the public golf course. Thus, the disposition rejecting correction of this case or the disposition of this case based on the provision of this case is unconstitutional because it goes beyond the purport and scope of delegation of Article 182 of the former Local Tax Act (wholly amended by Act No. 1021, Mar. 31, 2010; hereinafter referred to as the "former Local Tax Act"), and it constitutes an infringement of rights and property rights of taxpayers under the Constitution.

B. Determination

Therefore, Article 11 of the former Gross Real Estate Tax Act (amended by Act No. 10221, Mar. 31, 2010) provides that comprehensive real estate holding tax on land shall be imposed by dividing it into general aggregate taxation and separate aggregate taxation pursuant to Article 182(1) of the former Local Tax Act. Article 182(1) of the former Local Tax Act provides that property tax on land shall be imposed by classifying it into general aggregate taxation, separate aggregate taxation and separate taxation. Article 182(1) of the former Local Tax Act provides that land, excluding land subject to separate aggregate taxation or separate taxation among land owned by a person liable to pay tax as of the tax base date, shall be subject to comprehensive taxation ( Subparagraph 1), land attached to a building as prescribed by the Presidential Decree, and land prescribed by the Presidential Decree, which is prescribed by the Presidential Decree as land subject to separate taxation, protection and fostering of forests, forest land and clans prescribed by the Presidential Decree as necessary for the establishment and use of sports facilities (hereinafter referred to as "land similar to subparagraph 2 of the same Article).

On the other hand, the provisions of the Enforcement Decree of this case stipulate the "forest where the original form is preserved among the land for skiing ground and golf course pursuant to Article 12 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act" as delegated by Article 182 (1) 2 of the former Local Tax Act, the forest within the land for membership golf course is excluded here.

① Under Article 13(1) of the Installation and Utilization of Sports Facilities Act and Article 12 of the Enforcement Decree of the same Act, in order to obtain approval for a golf club business plan or approval for a revision to the said business plan, the ratio of securing the original preservation area of forests within the planning area of the golf club business should not be less than 20%. It can be seen as setting the limitation of changing the form and quality of forests. ② Generally, forest land preserved in its original form is naturally located outside the boundaries or golf courses so as to prevent safety accidents and play an important role in the landscape and landscape of the golf club. It is reasonable to view that it constitutes a golf club as a combination with other land such as golf courses in the golf club. ③ Article 18(1)1(c), Article 182(1)3(c), and Article 112(2)2 of the former Local Tax Act can not be seen as being subject to separate taxation from the acquisition tax, and even if it is difficult to view that the above provisions of the former Enforcement Decree of the Local Tax Act are inconsistent with those of the Local Tax Act.

3. Conclusion

Therefore, the first instance judgment dismissing the Plaintiff’s claim of this case is justifiable, and the Plaintiff’s appeal is dismissed.