다세대주택 건축허가를 받고 분양한 후 분양자들이 펜션으로 용도변경한 경우[국승]
Suwon District Court 2008Guhap3932 ( October 26, 2009)
Early High Court Decision 2008J 0419 ( October 17, 2008)
Where the seller has changed the purpose of use to a pension after obtaining permission for multi-household housing construction;
Even if the use of a building is multi-household as multi-household housing, and it was registered in the building ledger as multi-household housing, the actual purpose of use is the beginning, and it cannot be deemed as a residential building stipulated in the Housing Act, and it cannot be deemed as a national housing subject to additional tax exemption.
The contents of the decision shall be the same as attached.
1. Revocation of a judgment of the first instance;
2. All plaintiffs' claims are dismissed.
3. The total costs of the lawsuit are assessed against the plaintiffs.
1. Purport of claim
The Defendant’s imposition of value-added tax for the first period of 2004 against Plaintiff A on June 1, 2007, of KRW 352,710,413, and value-added tax for the first period of 2005 to Plaintiff AB on KRW 10,725,04, and value-added tax for the second period of 2003 to Plaintiff AB on KRW 60.983.236, value-added tax for the second period of 2003 to Plaintiff B, and KRW 347,540,239, value-added tax for the first period of 2004 to Plaintiff A, and KRW 5,953,143, and value-added tax for the first period of 203 to Plaintiff AB on KRW 9,74,272, and KRW 92,47,067, respectively, shall be revoked.
2. Purport of appeal
same as the entry.
1. Details of the disposition;
The court's explanation on this part is the same as the statement in Paragraph 1, which is the corresponding column of the reasoning of the judgment of the court of first instance, and therefore, it refers to Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
2. Whether the instant disposition is lawful
A. The plaintiffs' assertion
(1) The assertion of national attitudes
The plaintiffs initially obtained the building permit and approval for use of the building of this case as multi-family housing, and also prepared the building ledger as multi-household housing. The sales advertisement was made to the effect that the building was made available in order to facilitate the sale of the building, and only the buyers use the building of this case for purposes other than residence by changing the use of the building of this case to the accommodation facilities. Thus, the disposition of this case by the defendant on the ground that the building of this case is not a national housing subject to the exemption of value-added tax
(2) Claim that violates the principle of trust protection.
On or before February 2007, the disposition of this case by the Defendant, who received the notification of global income tax on the registration of the Defendant from August 2003 as well as the sales of the building in this case, was in violation of the principle of trust protection, and Article 18 of the Framework Act on National Taxes, that the act or calculation according to the interpretation or practice of tax-related Acts or the practice of national tax administration, shall be deemed legitimate after the Plaintiffs accepted generally by the taxpayers, and that the act or calculation according to the new interpretation or practice shall not be retroactively imposed by the new interpretation or practice.
(b) Related statutes;
It is as shown in the attached Form.
C. Determination
(1) Determination on the assertion of national housing
(A) According to Article 106(1)4 of the former Restriction of Special Taxation Act (amended by Act No. 7577 of Jul. 13, 2005), Article 106(4)1 and Article 51-2(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1981 of Dec. 30, 2006), and Article 2 subparag. 1 and 3 of the former Housing Act (amended by Act No. 7600 of Jul. 13, 2005), the term “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 used only for a residential purpose is not more than 85 square meters per household, and the value-added tax shall be exempted for the supply of a national housing. In light of the purpose of use or calculation of the property in question, the determination of the substance of the building in question shall be made based on the name of the national housing or the substance of the public account.
(B) Even if we were to return to the instant building and multi-household housing, Gap's 18, Eul's 6,12, Eul's 10, 13-1 or 9, Eul's 14-1, 2, 3, and 4's 14-2, the plaintiffs were not entitled to the construction permission of the instant building, around July 18, 200 (the construction permission date is September 5, 2003). The plaintiffs were not entitled to the construction permission of the instant building for 0-100, 300, 400, 400, 2000, 200, 300, 200, 400, 200, 200, 30,000, 30,000,000,000,000,000,000,000,000,00.
(2) Determination on the assertion of violation of the principle of trust protection
In addition, it cannot be said that the Defendant expressed a public opinion to the effect that the Plaintiff is exempted from the value-added tax on the instant building on the ground that the Plaintiff was registered as a value-added tax-free business operator and received the global income tax return on the sales class of the instant building, and it cannot be said that the Defendant’s investigation of the actual use of the instant building and the imposition of a legitimate value
(3) Accordingly, the instant disposition is lawful, and the Plaintiffs’ above assertion is without merit.
4. Conclusion
Therefore, the plaintiffs' claims of this case shall be dismissed in its entirety due to the lack of grounds, and the judgment of the court of first instance is unfair in its conclusion, and it shall be revoked and all of the plaintiffs' claims shall be dismissed. It is so decided as per Disposition.