2. The costs of lawsuit are assessed against the plaintiffs.

A. On July 1, 2014, the Plaintiffs registered a joint business proprietor as a new construction and sale business of a building, and newly constructed and sold officetels 63 (hereinafter “the instant officetel”) on the ground of △△ Parcel.

B. The Plaintiffs 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, ○○ conducted a tax investigation on the Plaintiffs, and the instant officetel sales income was deemed not subject to value-added tax exemption under Article 106(1)4 of the Restriction of Special Taxation Act, and notified the Defendant of the taxation data by deeming that the instant officetel sales income was not subject to value-added tax exemption under Article 106(1)4 of the Restriction of Special Taxation Act. Accordingly, on July 10, 2017, the Defendant corrected and notified the Plaintiffs of KRW 838,249,790 for the first

C. The Plaintiffs appealed and filed an appeal with the Tax Tribunal on September 29, 2017, and the Tax Tribunal dismissed the said appeal on December 27, 2017.

2. Whether the instant disposition is lawful

A. The plaintiffs' 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. Thus, the sales revenue of the instant officetel is subject to the exemption of value-added tax under the principle of substantial taxation, and thus, the instant disposition is unlawful. Furthermore, the tax authority’s disposition of this case violates the principle of good faith and the principle of prohibition of retroactive taxation, even though the instant disposition was conducted against the instant officetel, under the name of public opinion through the precedents of the established rules or the tax judgment, which determined whether the instant officetel was a house or not, based on its actual use status, and subsequently the Plaintiffs trusted it and sold the instant officetel for residential purpose, and did not report and pay value-added tax.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Contents of the relevant provisions

Article 106 (1) 4 of the Restriction of Special Taxation Act, Articles 51-2 (3) and 106 (4) 1 of the Enforcement Decree of the same Act, and Article 106 (4) 3 of the former Housing Act (amended by Act No. 13499, Aug. 28, 2015; hereinafter the same shall apply): ① Value-added tax shall be exempted on the supply of national housing and its housing construction services (including remodeling services prescribed by Presidential Decree) prescribed by Presidential Decree; ② “construction services for national housing and its housing prescribed by Presidential Decree” means housing smaller than the scale of national housing under the Housing Act (referring to the area based on the exclusive use area per household in cases of multi-family houses prescribed by Ordinance of the Ministry of Strategy and Finance); ③ The term “scale of the national housing” means housing the area of which used exclusively for residential purposes is 85 square meters or less per house (referring to housing the exclusive use area of which is 10 square meters or less per household in Eup or Myeon area other than the urban area under Article 2 subparagraph 1 of the Seoul Metropolitan Area Readjustment Planning Act).

Meanwhile, pursuant to subparagraphs 1, 1-2, and 2 of Article 2 of the former Housing Act and Articles 2 and 2-2 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 27444, Aug. 11, 2016; hereinafter the same shall apply), "house" means all or part of a building with a structure wherein constituent members of a household can live an independent residential life for a long time, and land annexed thereto; "house" means a detached house and an apartment house; and "quasi-housing" means a building, other than a house, and land annexed thereto, which are used as a residential house, and a building and land annexed thereto, other than a house, and a multi-household house under subparagraph 2 (d) of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 26974, Feb. 11, 2016; hereinafter the same shall apply) [Attachment Table 1] among dormitories under subparagraph 2 (d), communal living facilities under subparagraph 4 (o) and 15 (b) of the elderly welfare land under subparagraph 111 (b).

In addition, according to subparagraph 14 subparagraph 14 (b) of attached Table 1 of the former Enforcement Decree of the Building Act and Article 2 of the former Officetel construction standards (No. 2015-266, Apr. 30, 2015; hereinafter “former Officetel construction standards”), an officetel is a kind of general business facility and mainly engaged in business, and meets the standards publicly notified by the Minister of Land, Infrastructure and Transport as a building that allows accommodation in a part of a division among the divisions sold or leased, and (2) an officetel shall not be installed in a strip for each office section, and in cases of construction in combination with other purposes, an officetel shall be installed separately, and in principle, an office room shall be installed separately, and in cases of construction in combination with the office section for other purposes, a floor heating unit using a temperature, hot water temperature, or electric heat shall not be installed.

2) Determination on the instant case

A) Relevant legal principles

In light of the principle of no taxation without 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 circumstances, and shall not be extensively interpreted or analogically interpreted without reasonable grounds to the taxpayers (see, e.g., Supreme Court Decision 2003Du7392, May 28, 2004). In particular, it accords with the principle of fair taxation to strictly interpret that a clear preferential provision among the requirements for tax exemption is a requirement for tax exemption (see, e.g., Supreme Court Decision 2003Du7392, May 28, 2004). A national housing exempt from value-added tax under Article 106(1)4 of the Restriction of Special Taxation Act is limited to a building constructed for a housing purpose at least after obtaining a building permit lawfully, and even if it constitutes a national housing scale, it cannot be deemed a national housing exempt from value-added tax under the said provision even if its area constitutes a national housing (see, e.g., Supreme Court Decision 96Nu75888, Oct.

B) Whether the instant officetel supply is subject to value-added tax exemption

Considering the contents and legal principles of the relevant provisions as seen earlier, the instant officetel cannot be deemed as falling under the “national housing” under Article 106(1)4 of the Restriction of Special Taxation Act, and thus, it does not constitute the subject of value-added tax exemption.

① Article 2 of the former Housing Act defines quasi-housing that includes a house and its subordinate concept, a detached house, an apartment house, and an officetel, and its subordinate concept. The former Enforcement Decree of the Building Act (attached Table 1) defines housing and an officetel which is business facilities, and the term “house” and “quasi-housing are different from the relevant laws and regulations (house: Article 35 of the former Housing Act, etc., and officetels construction standards: Officetel) which provide for the building requirements and the standards thereof. Therefore, as long as the Enforcement Decree of the Restriction of Special Taxation Act clearly provides for the term “house smaller than national housing size under the Housing Act” as the object of value-added tax exemption, it is not allowed to expand or analogically interpret the term “quasi-housing” in the said “house” without permission in violation of the principle of no taxation without law and the principle of no taxation without law.

(2) In addition, an officetel is a building that can board and lodge in a part of the subdivisions in sale or rent pursuant to the Building Act. As such, it cannot be said that it constitutes a house under the Housing Act solely on the ground that it was simply constructed for the purpose of residence or is currently being used for the purpose of residence. Moreover, under Article 2 of the former Officetel Building Standards, an officetel is prohibited from the installation of a oars for each office subdivision. Thus, it cannot be said that an officetel is installed in the same structure as multi-family housing.

③ On the other hand, value-added tax is subject to the “supply of goods” (Article 4 of the Value-Added Tax Act). Accordingly, the objective type or use of a building at the time of the supply or the entry in the public register is bound to be determined on the basis of whether the supply of goods is subject to tax exemption. Although a resident in the instant officetel has made a move-in report for resident registration and used it for a residential purpose and paid property tax on a house or supplied electricity and gas for a residential purpose, this is merely a situation that occurred after the instant officetel’s supply. Rather, the owner or occupant of the instant officetel at any time may use it as a general business facility depending on its original purpose. Therefore, interpreting that the taxation of value-added tax differs depending on the circumstances after the supply or use is unreasonable as it seriously undermines legal stability in tax relations.

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

⑤ Ultimately, whether the supply of housing below the scale of national housing under the Housing Act, which is a tax-exempt requirement under the Restriction of Special Taxation Act, ought to be objectively determined according to the purpose of public register, such as a building permit, approval for use, building management ledger, and real estate register, barring any special circumstances. Therefore, “housing below the scale of national housing under the Housing Act” constitutes only a building constructed by obtaining a building permit lawfully for the use of a house for the purpose of business, such as an officetel. On the contrary, even though a certain building has been stated in the same purport as the building management ledger and real estate register, it cannot be deemed as a “house” merely because the current status is suitable for the purpose of residence and is actually used by many occupants for the purpose of residence (see Supreme Court Decision 2007Du21242, Feb. 14, 2008).

C) Whether the principle of good faith and the principle of prohibition of retroactive taxation is violated

In addition, there is no established rule on the supply of residential officetels subject to value-added tax exemption under Article 106 (1) 4 of the Restriction of Special Taxation Act, and there was a partial decision of the Tax Tribunal that revoked the disposition of value-added tax on this ground, the Defendant issued an official opinion to the Plaintiffs that the supply of the instant officetels constitutes the subject of value-added tax exemption, or that the interpretation of tax law or the practice of national tax administration is not established. Thus, the instant disposition is not in violation of the principle of good faith and the principle of prohibition of retroactive taxation.

D) Sub-committee

Therefore, the instant disposition is lawful, since the supply of the instant officetel is not subject to value-added tax exemption, and is not contrary to the principle of good faith and the principle of prohibition of retroactive taxation.

3. Conclusion

If so, the plaintiffs' claims are without merit, and all of them are dismissed. It is so ordered as per Disposition.

partnership.