부동산 세제의 위헌요소에 관한 연구 : 2020년 주택 관련 개정 세법을 중심으로

2020년 주택 관련 세법 개정의 위헌 요소를 분석했다.

Housing, along with land, forms a core foundation of production and livelihoods of people. Housing, being one of basic elements of survival, ‘food, clothing and housing,’its price significantly affects national economy as well as constitutional right to live, since the rise of housing price impedes economic stability by inducing rise of goods and service prices. Korean government launched a tax system reorganization scheme to increase both the real estate transaction tax and the property tax in response to recent drastic rise of housing prices, for the purpose of stabilizing housing price and protecting real demands.

The scheme includes “tax rate increase for the real estate acquisition made by multiple homeowners and corporates” regarding acquisition tax, “comprehensive real estate tax rate increase” in respect to ownership tax; and “capital gains tax increase along with additional residence term requirement for ‘special tax deduction for long-term holding’ regarding capital gains tax, which all them have been passed by the National Assembly after a month from the government’s announcement on its plan to resolve the issue.

However, such rapid tax scheme revision, with its insufficient expert review process and policy-centric conduct, faced criticism for infringing basic rights and compromising predictability. Indeed the unbalanced tax rate has resulted a facilitation of a skyrocket increase on single-household-single-housings. Evidently, it is observed that some approaches are made in order to respond to the growing concerns of basic rights infringement, which are so far insufficient.

The purpose of this study is to analyze the 2020 reforms made onto Acquisition Tax, Comprehensive Real Estate Holding Tax and Transfer Income Tax, the main pillars of transaction and holding taxation regarding housing, a target of recent real property policy taxation and the unconstitutional elements thereto. Especially the study aims to exhibit the limits of real estate tax policy through discussion of single-household-single-housing holder rights under the Constitution, and to provide complementary alternatives that do not consist of unconstitutional elements. The first unconstitutional element lies in the imposition of 12% unilateral tax rate on Gift Acquisition Tax.

Since the tax rate is applied to all the receipients regardless of the number of housing they own, it evidently violates the receipient’s property right and such unliateral application of relatively high tax rate may also breach the priniciple of equal taxation. Morever, increased Acquisition Tax rate without publication of transitional rules or exception clauses seems to be in violation of good faith obligation for taxpayers. Therefore, non-discriminatory taxation rate on the acquisitor basis should be applied to both sales and gifts to get rid of the unconstitutional elements. Moreover, comprehensive exception clause is necessary for single-household-single housing holders.

Remedy for those who have executed real estate contracts after July 10th should be established through legislation for the sake of trust protection. Secondly, simultaneous increase of both the Comprehensive Real Estate Tax rate and realization of the land value by public announcement has caused soaring future Comprehensive Real Tax amount. Application of 1.2%~6% Comprehensive Real Estate Tax rate would constitute erosion of the original value for multi housing owners and thus unconstitutional, threatening the property rights of the people.

Realizing the land value by public announcement policy would graudally increase the burden of holding tax for single-household-single-housing hoders as well, and the risk of orginal value erosion persists depending on the realization rate. Deduction clause do exist for singele-household-single-housings, but the clause is only in part applicable this vacuum may constitute breach of constitution in the midst of rising holding tax, that is Comprehensive Real Estate Tax. The reform also excludes housings co-owned by a married couple from the application of the deduction clause, which also may constitute a breach of Constitution article 36 paragraph 1.

Revision of current law does not recify the past breach, and therefore the unconstitutional elements persists. Therefore, complementary measures should follow and mediate the tax rates, and basic deduction clause of Comprehensive Real Estate Tax that sets individual 600million won and household 900million won basis needs to be revised more realistic by reflecting actual housing price increase rate. Land value by public announcement as the tax base for real estate taxes does not reflect current tax capacity. The government should consider reflecting annual inflation rate plus the real estate purchase price for the Comprehensive Real Estate tax base.

In addition, the current system lacks sufficient protection for single-household-single-housing owners without tax capacity. Additional deduction caluses are necessary for those other than elders and long term holders, and already existing deduction requirements need to be alleviated as well. There are also debates over unfair application of deduction requirements. In this regard, the basic deduction amount should be raised up to 120 million won for each household in accordance with the individaul basic deduction rate and amount.

Co-owned housings by married couples should also be categorized as single-household-single-housings and be allowed to enjoy deductions for elders and long-term holders. Thirdly, the reform has amended the special tax deduction for long-term holders legislation as to require additional ‘real residency,’ which has reduced deduction rate significantly, with under 6-month transition provision. The amendment without any consideration of inflation is likely to violate property rights, taking into account that the amendment is complementary measure for taxation of ‘high-priced’ single-household-single-housing, along with violat