우리나라 부동산세제에 있어서의 입법정책의 문제점

This study examined some legal problems and obstacles in implementing Korean government's real estate taxation policy targeted mainly to curb price appreciation and lessen ownership concentration in the property market. We especially focused our attention on interpreting and writing the capital gains tax regulation codes for the multi-house owners during the reconstruction process of old condominium-type buildings. Korea has more than 35-year history of maintaining a scheduler system of taxing the capital gains from the real property, separate from other ordinary income. Even though the ‘Capital Gains Tax’ - translated in Korean as ‘the tax on the income realized from the (asset) alienation’ - has been imposed upon the seller's total annual net gains from the chargeable capital assets sales, it has not been developed as a personal tax - equal tax treatment of chargeable capital gains amount which doesn't take into account of the seller's other income and economic position. The very narrow range of assets like the specific real estate and the rights to therein has been subject to taxation, and hence it has easily become a fiscal tool to stabilize the real property market cycles by the central government. Since the real property market is locally characterized in nature, using national capital gains tax for varying localities poses policy mismatch problem of means and goals. So Korean capital gains tax treatment on housing became differentiated according to the house location and owner's sales situation. Multi-house owners at the time of sale face almost a penalty level of capital gains tax burden of 50 to 60% tax rate. Except for the houses located in major urban cities around the Seoul metropolitan areas which require a 2-year residence requirement out of more than 3-year ownership period, the eligibility condition of ‘sole-and-only one house ownership per household at the time of disposal’ is enough for the total exemption of capital gains. The capital gains relief clause for the temporary dual house ownership occurring during the reconstruction period, coupled with the above generous capital gains exemption for the ‘sole-and-only’ house sale per household, became the major obstacles in tax administration. The necessary provisions for the counting of houses and/or the rights therein complicated the matter, leading to many tax appeals cases. Hence, we recommend that the current Korean capital gains taxation on housing be totally overhauled to become a part of the normal income tax. Rather than maintaining its current complex tax structure by differentiating the tax burden according to the specific housing market and the targeted multi-house ownership, it needs to be incorporated into the comprehensive personal income tax system as one source of income. Second, the current tax exemption favors given to the ‘sole-and-only house ownership per one family’ should be changed to the relief measure of capital gains roll-over for the ‘main home’ sales requiring more strict residency test. The second part of this paper deals with the current dual Korean property taxation system which levies recurrently on the real property ownership: local property tax and national wealth tax only on land and houses. We reviewed the roles and principles of property taxes ranging from Anglo-American type local property tax to Korean type aggregated real property tax. Legal and administrative distinctions between ‘land’ and ‘building’ both in the Korean property registry and public roll played an important role in the early adoption of graded property tax system in Korea. We showed the separate taxation of ‘man-made’ real estate and the pure land (vacant land) has more meaningful implications for the neutrality and equity of real estate taxation from an economic point of view. The market mechanism of housing which is the combination of residential capital and land, differs from that of land in that the supply elasticity of the former with regard to price tends to be higher than that of the latter. Finally after reviewing some legal aspects of the 2008 Constitutional court's ruling on Korea's real estate wealth tax, we suggest some possible revisions on the direction of the tax itself and other related real estate taxes. We suggest that the differential housing tax policies targeted for the different regional housing market might be more appropriate for the stabilization purposes as well as the equity and efficiency perspectives rather than the nation-wide wealth tax and capital gains tax.