National High Court Decision 2007Da3807 ( November 30, 2007)

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

208 Gohap1055 Revocation of Integrated Real Estate, etc.

○ Stock Company

○ Head of tax office

March 17, 2011

April 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 July 9, 2007 against the plaintiff on December 15, 2006 against the disposition of rejection of the disposition of imposition of comprehensive real estate holding tax for the year 2006 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a company that operates a membership golf club (hereinafter “instant golf club”) at ○○○-si, ○○○-si, ○○○○-si, one of its members of the golf club (hereinafter “instant golf club”).

B. On December 15, 2006, the Plaintiff classified the forest preserved in its original form in the instant golf course owned by it as a general aggregate taxation subject to comprehensive real estate holding tax (hereinafter “the instant forest preserved in its original form”) and reported and paid to the Defendant under Article 11 of the Comprehensive Real Estate Holding Tax Act, Article 182(1)1 and 2 of the former Local Tax Act (amended by Act No. 8099 of Dec. 28, 2006; hereinafter “former Local Tax Act”), Article 45-3(1) of the Framework Act on National Taxes (amended by Act No. 8139 of Jan. 1, 2007), Article 7(1) of the Special Rural Development Tax Act (amended by Act No. 8139 of Jan. 1, 2007), and Article 7(1) of the Framework Act on National Taxes (amended by Act No. 8139 of Jan. 1, 207).

C. After that, on June 15, 2007, the Plaintiff filed a claim for correction to the Defendant for the imposition of comprehensive real estate holding tax for the year 2006 on the following grounds: (a) on July 9, 2007, the Plaintiff filed a claim with the Defendant for correction to the effect that the report was erroneous on the basis of unconstitutional and unlawful laws and regulations; (b) however, on July 9, 2007, the Defendant rendered the instant disposition against the Plaintiff, “the Plaintiff rejected the claim for correction of the imposition of comprehensive real estate holding tax for the year 2006

D. On October 1, 2007, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the National Tax Tribunal on October 1, 2007, but the National Tax Tribunal dismissed the Plaintiff’s claim on November 30, 2007.

[Grounds for recognition] The descriptions of Gap evidence 1, 2, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) unconstitutionality of applicable statutes

(A) unconstitutionality of the Comprehensive Real Estate Tax Act itself

The Comprehensive Real Estate Holding Tax Act violates ① the essential contents of property rights, ② the objectivity and fairness of the evaluation as a taxation on unrealized gains, ③ the prohibition of double taxation violates the principle of prohibition of double taxation, ③ the local finance right is violated by incorporating the taxable items to be regulated by the Local Tax Act, and ④ the principle of equality is violated by discriminating against the person holding real estate and the person holding stocks or deposits, etc.

(B) unconstitutionality of Article 11 of the Gross Real Estate Tax Act and Article 182(1) of the former Local Tax Act

1) Violation of the principle of no taxation without representation and prohibition of comprehensive delegation

Article 11 of the Comprehensive Real Estate Tax Act and Article 182 (1) of the former Local Tax Act provide that the subject of taxation shall be classified into general aggregate taxation, special aggregate taxation, and separate taxation; subparagraph 1 provides that the land excluding the land subject to general aggregate taxation, which is subject to separate aggregate taxation or separate taxation; subparagraph 2 provides that the land attached to the building prescribed by the Presidential Decree, which is owned by the person liable to pay tax as of the date of taxation, and the land prescribed by the Presidential Decree, shall be subject to separate aggregate taxation; and the above "building prescribed by the Presidential Decree or the land which has considerable reason to be subject to separate aggregate taxation" is comprehensively delegated to the subordinate laws and regulations, even though it is the most important provision in the separation of general aggregate taxation from general aggregate taxation and general aggregate taxation, which is in violation

2) Other substantial violation of the principle of no taxation without representation, and infringement of property rights

In addition, Article 11 of the Comprehensive Real Estate Holding Tax Act and Article 182(1) of the former Local Tax Act are in violation of the principle of no taxation without law, they are in violation of property rights, double taxation, they are in violation of the principle of no taxation without law, they are in violation of the taxation of gains without realization, they are in violation of local finance rights, infringe on freedom of choice of occupation, violate freedom of choice of occupation, violation of the principle of no taxation

(C) unconstitutionality of Article 131-2(3) of the former Enforcement Decree of the Local Tax Act

1) Violation of the principle of equality

Article 131-2 (3) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 19817 of Dec. 30, 2006) provides that forest for the preservation of the original form of a membership golf course shall be subject to general aggregate taxation. This treats forest for the preservation of the original form of a membership golf course as equal to "land for sports facilities where the nature of the forest for the preservation of the original form of the golf course is different from that of "land for sports facilities where profits are created" and "land for non-business for the purpose of speculation", while it treats forest for the same nature as "a simple forest connected to a golf course"

2) Infringement of freedom of occupation selection

The heavy taxation on the forest land preserved in its original form of the golf course is likely to substantially impede the opening and operation of the golf course, so it infringes on the freedom of choice of occupation.

(D) Sub-determination

Therefore, the instant disposition is unconstitutional and illegal as it is based on the unconstitutional Comprehensive Real Estate Tax Act, Article 182(1) of the former Local Tax Act, and the Enforcement Decree of the instant case.

(2) Illegal in calculating the tax base

As the land for sports facilities, the officially assessed individual land price was determined. This is significantly higher than the current company trading in and around the officially assessed individual land price of neighboring forests and fields. Therefore, the disposition of this case, which is based on the premise of tax base, is unlawful as the decision of officially assessed individual land price is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Determination on the unconstitutionality of the relevant statute

(A) Determination as to the assertion of unconstitutionality of the Comprehensive Real Estate Holding Tax Act itself, Article 11 of the Comprehensive Real Estate Holding Tax Act, Article 182(1) of the former Local Tax Act

1) As the Plaintiff asserted in the instant case, the Constitutional Court rendered a constitutional decision on November 13, 2008 on the Constitutional Court Decision 2006Hu112, which held that the Comprehensive Real Estate Holding Tax Act itself is unconstitutional, and the Constitutional Court also rendered a constitutional decision on December 28, 2010 on the Constitutional Court Decision 2008Hu27, etc. on the issue of whether Article 11 of the Comprehensive Real Estate Holding Tax Act and Article 182(1) of the former Local Tax Act are unconstitutional.

2) Even though each provision of the law or any other provision of the law is unconstitutional, it shall be effective before the Constitutional Court has ruled that the law or the provision of the law is unconstitutional, and if the law or the provision of the law is unconstitutional, it shall not be excluded from the application of each individual case on the grounds that the law or the provision of the law is unconstitutional.

3) Therefore, Article 11 of the Comprehensive Real Estate Tax Act and Article 182(1) of the former Local Tax Act, regardless of whether the said Comprehensive Real Estate Tax Act and Article 182(1) of the Local Tax Act are unconstitutional as alleged by the Plaintiff, so long as the Constitutional Court has already rendered a decision of constitutionality, each of the above laws and the above provisions are still effective, and the court as a court has no choice but to judge as valid each of the above laws and the above provisions. Thus, the pertinent taxation disposition imposed based on the above laws and the above provisions cannot be deemed unlawful, and the Plaintiff’s above part of the claim is without merit.

(B) Determination as to the assertion of unconstitutionality under the Enforcement Decree of this case

1) As to whether it violates the principle of equality

① The principle of equality under Article 11(1) of the Constitution is the principle of tax equality to be realized in the field of tax law. The imposition and collection of taxes must be fair and equal in accordance with the taxpayer’s ability to pay taxes, and discrimination or preferential treatment against a specific taxpayer is not allowed without reasonable grounds (see Constitutional Court Order 98Hun-Ma5, Nov. 25, 199; Constitutional Court Order 93Hun-Ba2, Jun. 26, 1996).

However, in a case where there are reasonable grounds, discrimination among taxpayers is exceptionally permitted. With respect to how to determine the contents of the tax law, the legislative body can be granted a wide range of freedom of formation, and today's tax legislative body may consider various perspectives in order to achieve national economy, fiscal policy and social policy objectives in addition to the purpose of securing financial revenue (Supreme Court Order 2002Mo43 Decided October 31, 2002).

② The enforcement decree of this case deals with the same as “land for sports facilities where profit-making is created” as “land for sports facilities, etc., which must be preserved naturally without any artificial alteration of the form and quality,” and treats them differently from “a simple forest connected to a golf course”.

① However, in light of the characteristics of membership golf courses, which are recognized as property in addition to the provision of sports opportunities by attempting to discriminate from public golf courses, and the characteristics of membership golf courses, which are recognized as being an open-end closed-type, and ② the original preserved forest is legally required to be owned for the golf course business, and is provided for the use of the membership or the user’s benefits by combining it with the golf course. ③ In addition, the original preserved forest plays a role to block golf courses and forests, and only the users of golf courses who are not the general public can substantially access them, the original preserved forest of golf windows is essentially identical to the “land for sports facilities, in which profits are generated,” and is essentially different from the “a simple forest connected to a golf course” that is irrelevant to the golf course.

Therefore, the enforcement decree of this case cannot be deemed to violate the principle of equality.

2) As to whether freedom to choose an occupation is infringed

It is difficult to see that only heavy taxation on the forest land preserved in its original form has reached a decisive impact on whether it has accrued profit or loss of the golf course, and the occurrence of profit or loss is ultimately a problem of rationality of economic choice and efficiency of corporate management.

Therefore, even if the comprehensive real estate holding tax on the preserved forest land of the original form of a golf course is high, it would result in an economic choice to decide whether to acquire a golf course and operate a golf course even if it bears such economic burden, and it would not be legally or factually prohibiting the operation of the golf course business.

Therefore, this case’s enforcement decree provision cannot be deemed as infringing on the freedom of occupation (see, e.g., Constitutional Court Order 96Hun-Ba64, Feb. 25, 1999).

(C) Sub-determination

Therefore, the Plaintiff’s assertion that the instant disposition was unconstitutional, based on the Comprehensive Real Estate Tax Act, the instant legal provision, and the Enforcement Decree provision, is unlawful is without merit.

(2) Determination as to whether the calculation of the tax base is illegal

(A) In a case where there is an error in the determination of the officially assessed individual land price, the illegality itself can be asserted as an administrative disposition subject to the administrative litigation, and in an administrative litigation seeking revocation of the administrative disposition such as taxation based on this, it can also be asserted as an independent ground for illegality (see, e.g., Supreme Court Decision 93Nu8542, Jan. 25, 1994).

(B) With respect to the instant case, it is in essence identical to the land for the sports facility where the original preservation forest of the golf course is created, and it is in essence different from the land for the sports facility connected to the golf course. As seen earlier, since the officially assessed individual land price is determined as the land for the sports facility and the officially assessed individual land price is significantly higher than the current market price traded in the neighboring individual land price or the surrounding area, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.