다주택자 양도소득세 중과에 관한 규범적 검토 - 부동산 세금의 ‘제재’화에 관하여 -

다주택자 주택 양도소득세 중과의 법적 성격과 헌법적 타당성을 검토했다.

This article considers what the legal nature of the clause is and how it can be considered from the perspective of constitutional review criteria, focusing on Articles 95(2) and 104(7) of the Income Tax Act, which includes the exclusion of special long-term deduction for the transfer of houses in areas subject to adjustment by multiple homeowners, among the various legislation on strengthening the housing transfer income tax since 2018. The multi-homeowner capital gains tax clause, which calls for the levy of heavy capital gains tax and the exclusion of the special deduction for long-term ownership, is a kind of penalty tax.

Recently, however, the revision of the Income Tax Act to reflect the real estate policy strengthened the sanctioning function of the above clause, and above all, the government's intention to use the tax as a ‘sanction’ against multiple homeowners was clearly expressed. Regardless of its purpose and substance, regulation cannot avoid being subject to the constitutional review upon tax law. Tax jurisprudence and tax equality should be considered as criteria for reviewing constitutional limits arising from the aspect of taxation.

Also, it is necessary to apply the proportionality rule in terms of guaranteeing property rights to examine whether the sanctions, which are disadvantageous due to a heavy taxation on capital gains taxes for multiple homeowners, are not in balance with the policy objectives pursued by the government, and thus excessively restrict the property rights of taxpayers.

When the purpose and means of regulation by tax law is so extremely excessive that the nature of sanctions is clearly revealed, and the fundamental purpose and function of taxation under the ability-to-pay principle is undermined by that law, the provisions at issue that levy a heavy tax burden as a target shall not be recognized as a legislation within the constitutional limits of rule of law and tax administration. In that sense, the heavy capital gains tax for multiple homeowners would be the one that runs counter to the Constitution.