종합부동산세와 재산세 이중과세 조정 규정에 대한 공법적 고찰 - 대법원 2023. 8. 31. 선고 2019두39796 판결에 대한 평석 -

Abstract

The relevant judgment concerns the effectiveness of the provisions stipulated to adjust the double taxation of comprehensive real estate tax and property tax on the same real estate in the Comprehensive Real Estate Tax Law, as well as the legality of the tax assessment. The contentious provision refers to a specific calculation formula for double taxation adjustment as defined in the Enforcement Decree of the Comprehensive Real Estate Tax Law. The third-instance decision, which is the subject of this case, changed the position, asserting that, since the legislator enjoys broad freedom of legislative formation, the contentious provision cannot be considered void. However, in the decision, no clear rationale is found to overturn the previous decision, which had made the opposite determination. Furthermore, it appears that the third-instance decision did not offer adequate legal reasoning concerning the contentious provision. Is it not legally problematic to not follow alternative methods that can minimize double taxation? This could be viewed as a violation of the principle of proportionality, particularly the principle of minimal impairment, which is commonly required by the Constitution and administrative law, and it may also be considered a violation of principle of no taxtation without law.