면세대상인 국민주택 여부는 건축물 공급당시 실제용도를 기준으로 판단함[국승]
early 209 middle 2200 ( November 17, 2009)
National housing subject to tax exemption shall be determined on the basis of actual usage at the time of supply of buildings.
Even if a building permit and approval for use was granted for multi-household housing with the use of the building as multi-household housing, its practical use is deemed to be panty, which is an accommodation, from the beginning. Therefore, the Plaintiff’s assertion that the building is a national housing
1. The plaintiff's claim is dismissed.
2. The plaintiff shall bear the litigation costs.
The Defendant’s value-added tax of KRW 100,99,890 for the first time, 2005 against the Plaintiff on March 12, 2009
The imposition disposition shall be revoked.
1. Details of the disposition;
A. On August 24, 2005, the Plaintiff newly constructed and sold 15 households of multi-household 15 (hereinafter referred to as the “instant building”) in the name of ○○○○○, Gangwon-do, 1062-10, and on the ground that the supply of the instant building constitutes the supply of national housing under Article 106 of the former Restriction of Special Taxation Act (wholly amended by Act No. 8146 of Dec. 30, 2006; hereinafter the same), the Plaintiff reported the exemption of value-added tax on the sales revenue amount on the ground that the supply of the instant building constitutes the supply of national housing under Article 106 of the former Restriction of Special Taxation Act.
B. From November 24, 2008 to December 3, 2008, the defendant, including the plaintiff, who newly built and sold multi-household housing in the name of ○○○-ri 1062-8 to 11, 14, and 18, was investigated into nine individual business operators, including the plaintiff who newly built and sold multi-household housing in the name of ○○-ri 1062-8 to 11, 14, and on March 12, 2009, on March 12, 2009, "the building of this case was 9 units" for the original purpose of accommodation, but it was newly constructed and sold with a building permit for multi-household housing which is easy to be registered for each unit and changed to the purpose of accommodation facilities after being newly built and sold. Thus, the defendant was not subject to national housing (hereinafter "disposition of this case").
C. On May 18, 2009, the Plaintiff appealed to the Tax Tribunal for the revocation of the instant disposition, but was dismissed on November 17, 2009.
[Reasons for Recognition] The purport of the entire pleadings in Gap evidence 1, Eul evidence 1, 2 (including each number)
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
For the following reasons, the instant disposition is unlawful.
(1) The first main place: The Plaintiff’s new construction and sale of the instant building into a house that can carry on an independent residential life for a long time with the exclusive residential area of 85 square meters or less for each household, but it is unlawful to impose tax on the building as an accommodation facility
(2) Chapter 2: It is against the principle of retroactive taxation prohibition, as well as the principle of good faith and trust protection to impose tax on the Plaintiff even after completing an on-site investigation in relation to the construction of the building in this case, on the ground that the buyer changed the purpose of use to accommodation facilities. The public official belonging to the Defendant also violates the principle of retroactive taxation prohibition.
B. Relevant statutes
It is as shown in the attached Form.
C. Determination
(1) As to Chapter 1
(A) According to Article 106(1)4 of the Restriction of Special Taxation Act, Articles 106(1)1 and 51-2(3) of the Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 19888 of Feb. 28, 2007), Article 2 subparag. 1 and 3 of the former Housing Act (wholly amended by Act No. 7334 of Jan. 8, 2005), and Article 2 subparag. 1 and Enforcement Decree of the same Act (wholly amended by Presidential Decree No. 1873 of Mar. 8, 2005), “housing” means all or part of a building with a structure where a household member can carry on an independent residential life for a long time, and the area of housing used only for a residential purpose is exempted from value-added tax on the national housing, and whether it constitutes an act of supplying the relevant building without regard to the purpose of use or calculation of profit under the Act or the substance of the relevant building.
(B) In the instant case, comprehensively taking account of the overall purport of the pleadings stated in the evidence Nos. 4 through 12 (including the serial number), the Plaintiff’s assertion that the instant building is the B/Dong of 10 ○○○○○-gun, and 8 parcels, which is a complex of 9 Dong (A Dong through I Dong). The Plaintiff’s sales contract with 5% of the sales price was all the same; 2, 3, 4, 9, 9, 5, 6, 6, 6, 6, 6, 6, 6, 6, 7, 7, 7.5% of the sales price, 7.5% of the sales price, 7, 7, 1, 7, 7, 7, 6, 6, 6, 6, 12, 7, 13, 5, 7, 7, 5, 5, 1, 7, 7, 5, 5, 1, 7, 5, 7, 5, 7, 7, 5, 7.
(2) As to Chapter 2
In addition, the Defendant did not impose the value-added tax on the ground that the initial actual purpose of the instant building is accommodation, and did not take the instant disposition as a matter of the buyer’s alteration of purpose of use, and thus, it cannot be deemed that the instant disposition violates the principle of retroactive taxation prohibition. Meanwhile, considering the overall purport of the pleadings in the statement of evidence No. 3, it is difficult to view the Defendant as having expressed a public opinion that the Plaintiff was registered as the duty-free business operator on April 27, 2004, even though it is recognized that the Plaintiff was registered as the duty-free business operator, and is exempt from the value-added tax on the supply of the instant building. Therefore, it cannot be deemed that the instant disposition
3. Conclusion
Therefore, the plaintiff's claim is dismissed. It is so decided as per Disposition.