2. The costs of lawsuit shall be borne by the Plaintiff.

On December 8, 2017, the imposition of value-added tax of KRW 536,97,50 (including additional tax) imposed on the Plaintiff on December 8, 2016 by the former Cheong-gu Defendant on the Plaintiff shall be revoked.

가. 원고와 안ㅁㅁ는 2015. 10. 5. 공동으로 사업자등록을 하고 2016년 10월 무렵 인천 부평구 부평동 341-100 외 1필지 지상에 오피스텔 56호(이하 '이 사건 오피스텔'이라 한다)를 신축하여 분양하였다.

B. The Plaintiff did not file a value-added tax return on the instant officetel sales income subject to the exemption of value-added tax on the instant officetel sales income by deeming the instant officetel sales income as housing sales. However, the director of the Central Tax Office conducted a tax investigation on the Plaintiffs, and notified the Defendant of the taxation data by deeming that the sales income of the instant officetel is not subject to value-added tax exemption under Article 106(1)4 of the Restriction of Special Taxation Act. Accordingly, on December 8, 2017, the Defendant corrected and notified the Plaintiff of value-added tax amount KRW 536,97,50 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on March 6, 2018, and the Tax Tribunal dismissed the said appeal on June 1, 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the instant officetel was newly constructed for residential purpose and actually used as a house of national housing scale under Article 106(1)4 of the Restriction of Special Taxation Act includes officetels used for residential purpose, the sales revenue of the instant officetel is subject to value-added tax exemption under the principle of substantial taxation, and thus, the instant disposition was unlawful on a different premise.

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B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) There is no dispute between the parties that the instant officetel’s construction permit and public account use constitutes business facilities. Therefore, the issue of the instant case is whether the purpose of the instant officetel’s public account falls under business facilities, but the structure is designed for residential purposes, and if the occupant actually uses it for residential purposes, it constitutes “housing below the national standard housing size under the Housing Act” under the Restriction of Special Taxation Act, and whether value-added tax should be exempted for supply.

2) Relevant legal principles

A) According to Article 106(1)4 of the Restriction of Special Taxation Act, Articles 51-2(3), 106(4)1 of the Enforcement Decree thereof, and Article 2 subparags. 5 and 6 of the former Housing Act (amended by Act No. 14344, Dec. 2, 2016; hereinafter the same shall apply), value-added tax shall be exempted for the supply of construction services of national housing and their houses prescribed by Presidential Decree. (2) The term “construction services for national housing and their houses prescribed by Presidential Decree” refers to housing below the national housing scale prescribed by the Housing Act; (3) The term “scale of national housing” means housing the area of which used only for residential purposes does not exceed 85 square meters per house or household (referring to housing the exclusive residential area under Article 2 subparag. 1 of the Seoul Metropolitan Area Readjustment Planning Act or for which the exclusive residential area per house or household unit is not in an urban area; and (2) the term “building and its appurtenant land to housing” in Article 2 subparag. 1, 4 and 4 of the Housing Act.

In addition, according to Article 2 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 27751, Dec. 30, 2016; hereinafter the same), [Attachment 1] subparag. 14(b)2 of the Enforcement Decree of the Building Act and the Ministry of Land, Infrastructure and Transport Notice (No. 2015-266), an officetel is a kind of business of a general business facility, and an officetel is a building that allows accommodation in a part of a subdivision, among the subdivisions sold or leased, and where the exclusive area of each office section is not more than 85 square meters, a floor heating using hot-water, hot-water or electric heat can be installed.

B) In light of the principle of no taxation without the law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws and regulations shall be interpreted as the text of the law, barring any special circumstance, and shall not be extensively interpreted or analogically interpreted without reasonable grounds to taxpayers. In particular, the strict interpretation of the requirements for tax exemption and exemption that can be clearly viewed as the preferential provisions accords with the principle of fair taxation (see, e.g., Supreme Court Decisions 2003Du7392, May 28, 2004; 2007Du21242, Feb. 14, 2008). In addition, national housing exempt from value-added tax under Article 106(1)4 of the Restriction of Special Taxation Act constitutes a national housing if it falls under the category of national housing, at least a building constructed for the purpose of housing with the construction permission lawfully obtained, and if it is remodeled without obtaining the permission for use after obtaining the construction permission from an officetel, even if it constitutes a national housing exempt from value-added tax (see, e.g., Supreme Court Decision 198Nu6.

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3) In light of the content and legal principles of relevant laws and regulations prior to whether the instant officetel supply is subject to value-added tax exemption, the instant officetel cannot be deemed to constitute “national housing” under Article 106(1)4 of the Restriction of Special Taxation Act for the following reasons.

A) Article 2 of the former Housing Act sets a different definition of a house and a quasi-housing containing a detached house, an apartment house, and an officetel, which are its subordinate concepts. The former Enforcement Decree of the Building Act sets a different definition of a house and an officetel which is a business facility, and the term “house” and “quasi-house” also differ from the relevant laws and regulations setting the building requirements and standards. Therefore, as long as the Enforcement Decree of the Restriction of Special Taxation Act clearly prescribes a house smaller than national housing size under the Housing Act as an object of value-added tax exemption, it is not allowed to expand or analogically interpret that the term “quasi-housing” is also included in the above “house” or to interpret it without permission in violation of the principle of no taxation without law and the

B) The introduction of the concept of quasi-housing into the Housing Act amended by Act No. 10237, Apr. 5, 2010 is merely for facilitating the supply of facilities available for residential purposes without being classified as a house in response to the changed housing demand conditions, and it does not aim at facilitating the supply of facilities available for residential purposes by incorporating officetels into the concept of a house and not for supporting the residential stability and tax benefits of ordinary people. In particular, quasi-housing stipulated in Article 4 of the Enforcement Decree of the Housing Act includes dormitories, multiple living facilities, etc. In particular, such a building is related to the supply of housing for the stabilization of ordinary people, which is the legislative purport of Article 106(1)4 of the Restriction of Special Taxation Act.

C) An officetel is a building for which board and lodging can be conducted mainly from its original place of business in accordance with the Building Act and subordinate statutes, and for the reason that it was simply constructed for the purpose of residence or is currently being used for the purpose of residence.

- 6- Housings under the Housing Act cannot be considered as housings under the Housing Act. In addition, under Article 2 of the old Office Office Building Standards, officetels is prohibited from the installation of a strip (balcony) for each office partition, and it cannot be said that officetels are installed in the same structure as multi-family housings.

D) Meanwhile, the value-added tax is subject to the “supply of goods” (Article 4 of the Value-Added Tax Act). Therefore, the objective type or use of a building at the time of the supply, and the entry in the public account book, in particular, should be determined based on the standard. Although the occupants of the instant officetel use most of them for residential purposes, it is merely a situation that occurred after the supply of the instant officetel, and the owners and occupants of the instant officetels may use them as general business facilities at any time according to their original use. Therefore, construing that the taxation of value-added tax on the goods subject to the supply of goods differs depending on the circumstances after the supply becomes unreasonable as it seriously undermines legal stability in tax law.

E) Ultimately, barring any special circumstance, whether the supply of a house below the national housing scale under the Housing Act, which is a tax-exempt requirement under the Restriction of Special Taxation Act, constitutes “supply of a house below the national housing scale under the Housing Act” ought to be objectively determined according to the purpose of public record, such as building permission, approval for use, building management ledger, and real estate register. “Housing below the scale of national housing under the Housing Act” constitutes only a building constructed according to the purpose of use of a house after obtaining a building permit and approval for use for business purposes, such as officetels. On the contrary, even though any building has been stated in the same purport as the building management ledger and real estate register, it cannot be deemed as a “house below the scale of national housing under the Housing Act” solely on the sole basis that the current status is suitable for the purpose

- 7- Their decision is see, e.g., Supreme Court Decision 2007Du21242 Decided February 14, 2008)

Therefore, the instant disposition is lawful where the Defendant’s supply of the instant officetel is not subject to value-added tax exemption.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.