현행 부동산 보유세의 헌법적 재조명

The nation’s top court declared that key parts of the Comprehensive Real Estate Tax Law(CRETA) are unconstitutional, leading the government to refund a significant portion of the special tax levied on high-end housing properties. This study has also reached the conclusion that, according to the principles of law, CRETA can be unconstitutional. However, the grounds of unconstitutional decision of this study are quite different from those of the Constitutional Court. The Constitutional Court ruled that the tax did unconstitutionally levy a tax based on the total value of the properties of a household, rather than imposing the tax on individual owners. Seven of the nine justices ruled the clause unconstitutional. The determination of the taxable unit in the tax code and the method of imposing the tax have historically been popular subjects of scholarly and political debate. As a conclusion, this paper suggests that it is not a legal question, but a political question which should be decided by Legislature. The Court also said in its ruling that CRETA was established to improve the fairness of the tax burden and to stabilize real estate property prices, and such purposes are legitimate and the tax burden is not excessive, based on the purpose. This conclusion is also somewhat different from that of this paper. This paper suggests that the ability to pay tax should be evaluated not by present value of the property but by purchasing price in order to improve predictability of the taxpayers. This paper also suggests that tax system can be used as an instrument of real estate policy. But using tax as an instrument of real estate policy is somewhat limited by the Constitutional and the general legal principle. It is desirable to use tax system as an auxiliary vehicle in real estate policy. The Court also ordered the revision of the tax law, noting that CRETA has violated the Constitution by indiscriminately imposing the tax even on people who own only a single property that they use as their primary residence. The court set Dec. 31, 2009 as the deadline for the revision to free such single-home owners from the tax. This paper suggests same conclusion as that of the Constitutional Court. However, the unconstitutionality of uniform assessment for individuals such as long-term owners of single homes for the purpose of residence remain controversial and under discussion. Some people interpret this decision as saying that owners of single homes should not be taxed. Others insist that the legislation must consider factors such as motivation for real estate ownership, period of time and ability to pay taxes.