Tax Tribunal 2016Seoul Northern2603 ( October 26, 2016)

Whether the apartment of this case is subject to the exclusion of aggregate exclusion

The Plaintiff’s comprehensive AA construction, a trustee, is not a housing constructor who has obtained a building permit under the Building Act, and the instant real estate cannot be deemed a housing unit built and owned by a housing constructor, and thus, the instant real estate does not constitute a housing unit excluded from the aggregate real estate tax

Article 8 of the Gross Real Estate Tax Base Act

2016Guhap85569 Revocation of Disposition of Imposition of Comprehensive Real Estate Tax

BBBBBB Co.

Samsung Head of Samsung Tax Office

on October 28, 2017

on October 26, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 32,244,650 of the comprehensive real estate holding tax for the year 2015 against the Plaintiff on April 25, 2016 and KRW 5,880,790 of the special consumption tax for agricultural and fishing villages shall be revoked.

1. Details of the disposition;

A. AD General Construction Co., Ltd. (hereinafter referred to as a "AA General Construction") purchases from around 200 X. of 200 XX Dong-P-4 parcel (hereinafter referred to as "the site of this case") from a company for housing construction business, etc., and newly constructs and sells an apartment house of 60 households on the ground of the above site (hereinafter referred to as "the project of this case") after registering as a housing constructor in X. X. 200, X. 200, to carry out the project of constructing and selling an apartment house of 60 households on the above site (hereinafter referred to as "the project of this case"). AD General Construction Co., Ltd. (hereinafter referred to as "A General Construction") obtained a building permit from the head of the Gu of XX Metropolitan City.

B. AA comprehensive construction commenced at the end of 200 X. XX., however, the construction was discontinued after discontinuance of the construction due to the lack of sale conditions, and the construction was discontinued at around X. X., but it was impossible to obtain a loan from a financial institution, and the construction was discontinued at around 20 XX. X.

C. AA comprehensive construction entered into an implementation project agency agreement with the vice president of the CC Construction Co., Ltd. (hereinafter referred to as “CC Construction”) with the vice president of the 20 XX. X. XX. The main content is as follows.

1. With respect to the execution of the instant project, between the owner and the owner, AAGeneral Construction and the vice president and the vice president and the vice president ofCC, who are the owner and owner, enter into an execution agency agreement for the said project:

2.A comprehensive construction will be made prior to consultation withO by making a written version of the contents that will obstruct the implementation of the project and the progress of the construction, including the legal defects in the construction design and the land and construction cost of the land suspended while performing the construction project during that period.

3.OO will act on behalf of all the implementation tasks from and to implementation of the basic plan for resumption of the project, including the financing schemes for the selection of the contractor and the securing of the cost of the project to continue the execution of the project, and the allotment schemes for the recovery of the invested funds, after sufficiently familiar with the contents of paragraph 2.

4. The direction of the basic planning for the resumption of the project shall basically be on the basis of the terms and conditions agreed upon between the two parties (including the establishment of a new SPC corporation, the establishment of a construction cost, and the payment of a part of the cost payable at the end of the construction work, which shall be made by the OO at the same time as the construction commences, and the remainder shall be resolved by AA General Construction, and a civil petition arising at that site shall be resolved by AA General Construction

5.OO shall set out as soon as possible the above schemes for the resumption of this project and shall consult with AA General Construction, and shall endeavor to resume the Project from X X of X of 20 XX unless there is a legal obstacle, and for this purpose, AA General Construction shall cooperate to the maximum extent possible with OO's direction.

6. To prepare a mutual agreement between the heads of planning plans and funding plans for the resumption of this project by the OO, and to prepare a mutual agreement between them, and to proceed with the details of the project;

2. Status of parties to a contract;

1) Until now, AA General Construction has been carried out while performing construction works for AA General Construction. However, as a result, the AA General Construction has been transferred from AA General Construction to a financial company for the purpose of securing construction costs, and as a result, the AA General Construction applied for a construction cost loan to a financial company for the purpose of securing construction costs, it is not possible to procure construction costs under the name of CC Construction.

D. AA comprehensive construction entered into an agreement on the construction and project of the instant project with 20 XX. X. X.CC. The main content of AA comprehensive construction is as follows. Accordingly, AA comprehensive construction completed the registration of ownership transfer due to the sale and purchase of the instant site to X. X. x.CC Construction, and the owner of the building permit changed from AA comprehensive construction toCC construction.

2) Ultimately, in order to procure construction costs for carrying out a party project, it was inevitable to obtain a loan from a financial company with the financial credit of theCC Construction as well as the status of the operator and the status of the contractor, and it was an inevitable form in whichCC Construction could not proceed after being transferred from the AA Comprehensive Construction;

3) The revenue and risk burden of the project implementation as the status of the actual implementer is the same as that of the AA General Construction, and, in external terms, the CC Construction has the status as the implementer, and the status of the contractor has been substantially or externally taken over and participates in the project.

4) This is intended to divide the project implementation gains and risks into the AA comprehensive construction share for the project implementation proceeds and risks and to classify only the construction cost as the share for the CC Construction (Settlement after completion of the project).

Do Governor's actual implementer's liability and duty for AA General Construction as a result of

- the prompt resolution of accounts payable to the project undertaken and civil petitions currently pending;

- With respect to the right to sunshine generated in the course of construction and other civil petitions

- The prevention of disadvantages and losses resulting from the construction ofCC in lieu of AA comprehensive construction, and the compensation therefor, because it has a external executor status;

Do Governor's actual status of construction, and the responsibility and duty ofCC Construction as such

- Execution of a timely amount of the previously undertaken construction work ($X0 million)

- Prevention of early commencement and delay in completion of the responsibility when resolving civil petitions in progress;

5. Bearing project costs and construction costs;

1) AA comprehensive construction is actively co-operated so thatCC construction can take out a loan for construction costs, as it is inevitable to change the status of the operator of the project (a housing project permit authority) in the future of the CCC construction.

2) All the expenses for the implementation of a project disbursed due to the modification as above 1 in the future of theCC Construction shall be borne by the AA General Construction. However, if it is inevitable for the progress of the project, it shall be paid in advance and shall be treated as a loan to AA General Construction (Settlement of Interest thereon).

3) To ensure transparency in the implementation of this project, separate accounting books for the project will be prepared, and an accurate amount of personnel in exclusive charge shall be assigned to calculate the profit and input cost of the project (the cost, such as the salary for the person in exclusive charge, shall be borne by the AA comprehensive construction).

4) The details of the project cost X, trade-level, trade-level, trade-level, and trade-level, trade-level, trade-level, trade-level, trade-level, trade-level, trade-level, trade-level, trade-level, trade-level,

(1) Basic construction cost: A permitted area X, a trade-related class, XX level x a trade-related class: A trade-related class, a trade-related class, or a trade-related class.

- The amount included in the agency service cost (X, P.L x XX00 won) to be paid by AA comprehensive construction to the OO ofCC under the implementation agency contract of March 31, 2010.

6. Expenditure and settlement of project costs;

1) The selection of a sales agency shall be a comprehensive AA construction.

2) The order of funding execution shall be settled in the order of (1) construction cost, (2) loans to CC Construction for AA comprehensive construction, (3) project implementation cost (including implementation cost and land transfer cost, etc., which CC Construction has held for AA comprehensive construction as it appears to be a project implementer), (4) land cost and (5) project implementation profit.

3) Withdrawal of the subscription price for sale shall be made by the CC Construction in consultation with AA General Construction and shall be made by way of the order of execution of the above funds (construction priority). In this case, AA General Construction shall not raise any objection against the reasonable amount of execution of the CC Construction.

7. Terms and conditions of mutual agreement to recover construction costs for the construction ofCC;

In the event that 60% of the sales price has not been achieved until three months after the completion of construction, and collection, such as the construction cost, from the revenue of theCC Construction, has been poor,CC Construction made a discount disposition as follows, and it agrees to recover the construction cost, etc., and to recover the construction cost, etc. from the lease deposit (10 million won) by setting the lease on a deposit basis.

- Subject matters for whichCC Construction may dispose of at a discount: Apartment x households and officetels

- The amount of discount disposal per apartment household: apartment Y. XX. XXp-type standard X0 million won (propath 10,000 won);

- The amount of discount for each office of officetels: the amount that may be disposed of at the time.

8. Terms and conditions of mutual agreement for the period of recovery of sales proceeds from the AA comprehensive construction.

Where collection of the construction cost, etc. ofCC Construction has been completed in full after the completion and repayment of loans to the financial company ofCC Construction with regard to the site requires the sale period for the remaining unsold portion in order to recover funds from sales revenue, the construction cooperation shall be made by the CC Construction so that the sales revenue can be recovered by adding the sales revenue to the commercial unit construction for one year after the completion of construction for the officetel portion and for the apartment portion for three months after the completion of construction for the apartment portion (at the same time, AA General Construction shall be relocated, and at the same time, AA General Construction shall not raise any objection even if voluntary disposal is not made by the CC Construction). However, at this time, expenses, such as taxes and public charges, etc. due to this period, shall be borne by the AA General Construction.

마. CC건설은 이 사건 부지를 담보로 공사자금을 대출받아 20XX. X.말경 이 사건 주택(이 중 뒤에서 보는 이 사건 처분의 대상이 된 XX XXX XXX XX-XX XXXXX X동 XXXX호 외 XX세대를 이하 '쟁점 주택'이라 한다)을 완공하고 20XX. X. XX. 소유권보존등기를 마쳤다.

F. AA comprehensive construction andCC construction drafted an agreement 20 XX. X. XX. The main contents are as follows. AA comprehensive construction pays work cost, work-level, work-level, work-level, work-level, work-level, work-level, work-level, work-level, work-level, work-level, work-level, work-level, and other X, work-level, work-level, and work-level, trade-based, trade-related housing, and then completed the registration of ownership transfer based on a trust on housing issues to the Plaintiff.

The AA General Construction andCC Construction agree with respect to the payment of the construction cost as follows, after the implementation and construction under the project agreement prepared by X. X. is completed.

1. Details;

Agreed Amount: P, Trade-Level, Trade-Level, and Trade-Level Institute

Payment Method:

가. 현재까지 분양대금(XXXX호, XXXX호, XXXX호, XXXX호)으로 입금되어 CC건설에게 지급된 XXX,XXX,XXX원 및 상가를 담보로 대출하여 CC건설에게 지급된 XXX,XXX,XXX원은 합의 금액에서 공제한다.

나. 미분양된 아파트 중 XXXX호(분양금액 XXX,XXX,XXX원), XXXX호(분양금액 XXX,XXX,XXX원), XXXX호(분양금액 XXX,XXX,XXX원), XXXX호(분양금액 XXX,XXX00,000원), XXXX호(분양금액 XXX,XXX,XXX원), XXXX호(분양금액 XXX,XXX,XXX원)는 AA종합건설이 책임지고 제3자에게 위 분양대금으로 수분양자 명의로의 소유권이전등기는 CC건설이 AA종합건설에게 소유권이전등기를 경료해 줌과 동시에 AA종합건설이 다시 수분양자 명의로 소유권이전등기를경료해 주도록 하되 이러한 일련의 순차적인 소유권이전등기는 CC건설이 수분양자로부터분양대금을 지급 받음과 동시에 이루어지도록 한다.

C. (1) The AA General Construction shall receive a loan (including a collateral trust) from a financial institution to provide the remainder of the apartment units other than each apartment unit set forth in paragraphs (a) and (b) above with the loan, and shall pay the construction cost (the sum set forth in paragraphs (xx), (b), and (c) above at the CC and Construction, at the relevant work-level, and at the relevant work-level, the other X, the relevant work-level, the relevant work-level, and the relevant work-level, and if the loan is less than the amount of the above construction cost to be paid, it shall be paid in cash separately prepared

2. Conditions;

B. In the transfer of the ownership of the apartment and commercial buildings as described in paragraphs (a) through (c) above, if the amount of money (such as the purchase price) being the previous consideration does not exceed the above agreed amount (including XX, trade-related, trade-related, trade-related, trade-related, trade-related, trade-related, trade-related, trade-related, trade-related, trade-related, trade-related, etc.), the amount equivalent to 22

C. In recognition of the status of the actual “execution company” of AA General Construction, where AA General Construction bears tax due to transaction and donation with a specially related party (in accordance with other tax laws) where AA General Construction is proved to be transferred to AA General Construction by discounting the sale price in order to settle and return the construction cost and project expenses related to the project.

f. The agency service cost (X, work-level. XX level x 100,000 won) that theCC Construction shall pay to OO, including the construction cost, is excluded from this agreement upon the request of AA General Construction and OOO. As such, the agency service cost must be paid directly to OO by AA General Construction.

G. The Defendant imposed a comprehensive real estate holding tax in 20 XX with respect to the housing at issue in XX. The Plaintiff submitted a report of exclusion for aggregate on the grounds that the housing constitutes a housing unit constructed by AA comprehensive construction, and the housing unit constitutes a housing unit built by the Plaintiff. The above disposition of exclusion was revoked.

H. After that, the Defendant deemed the instant housing to be subject to addition on the ground that it does not constitute a house unsold in lots owned by AA comprehensive construction, a housing construction business entity, and determined and notified the Plaintiff’s comprehensive real estate holding tax for 20 XX. The Defendant decided and notified the Plaintiff of the general real estate holding tax for 20 XX (hereinafter “instant disposition”).

I. Accordingly, the Plaintiff filed an appeal with the Tax Tribunal on 20 XX. X. X., but the Tax Tribunal decided to dismiss the appeal in XX. 20 XX.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 17 (including each number), Eul evidence 1 and 2

Each entry, the purport of the whole pleadings

4. Determination on the lawfulness of the instant disposition

A. Summary of the plaintiff's assertion

AA General Construction is the owner of the instant housing as the actual implementer of the instant project, and it is nothing more than the owner of the instant housing in the name of the owner of the instant housing as the contractor of the instant project. Accordingly, the instant disposition that included the instant housing in the subject of comprehensive real estate holding tax is illegal for violating the substance over form principle, on the ground that the instant housing falls under the housing unit owned by AA General Construction as the owner of the instant housing unit and is excluded from the aggregate of the tax base of comprehensive real estate holding tax.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) According to Articles 7(1) and 8(1) of the Comprehensive Real Estate Tax Act, the tax base of comprehensive real estate holding tax on housing is the aggregate of publicly notified prices of housing by taxpayers. If the aggregate of publicly notified prices of housing subject to property tax as of the tax base date exceeds 600 million won, such aggregate is subject to comprehensive real estate holding tax.

However, Article 8 (2) 2 of the Comprehensive Real Estate Tax Act provides that "in cases of housing not suitable for the purpose of imposing comprehensive real estate holding tax, such as housing unsold in lots constructed and owned by a housing construction business operator, which is prescribed by Presidential Decree," the scope of housing subject to adding up the tax base shall not be included. Article 4 (1) 3 of the former Enforcement Decree of the Comprehensive Real Estate Tax Act (amended by Presidential Decree No. 27444, Aug. 11, 2016; hereinafter the same shall apply) provides that "housing unsold in lots prescribed by Ordinance of the Ministry of Strategy and Finance, which is constructed and owned by any of the following persons who have registered his/her business as of the base date for taxation" and (a) provides that "person who has obtained permission under Article 16 of the Housing Act" and Article 4 of the Enforcement Rule of the Gross Real Estate Tax Act provides that "housing unsold in lots" shall be "houses unsold in lots prescribed by Ordinance of the Ministry of Strategy and Finance, and for which a person who has obtained approval for business plan under Article 16 of the Housing Act has owned housing unsold in lots"

On or after January 1 of each year, "Housing for which five years have not elapsed since the date on which the first liability to pay property tax on housing comes into existence" (hereinafter collectively referred to as "the first clause").

However, under the principle of no taxation without law, or the requirements for tax exemption or tax exemption, and the interpretation of tax laws shall be interpreted as the text of the law unless there are special circumstances, and it is not allowed to expand or analogically interpret without reasonable grounds. The issues of this provision stipulate special cases for exclusion of adding up the principle that allows each taxpayer to add up the publicly notified price of housing. Therefore, it should be strictly interpreted in accordance with the language and text.

In light of the language and purport of the above-mentioned provision, and the relevant legal principles, the key provision applies to a housing unsold in lots which a housing construction business operator directly constructed and owned by him/her after obtaining a construction permit, and it is reasonable to deem that such provision does not apply to a case where a taxpayer has acquired ownership by purchasing a housing unsold in lots which a third party constructed and owned after obtaining a construction permit.

2) However, in full view of the following circumstances revealed by the facts acknowledged earlier and the purport of the entire pleadings, it is difficult to view the pertinent housing as an unsold housing which was constructed and owned by AA General Construction after obtaining a building permit directly, and thus, it does not meet the requirements for the application of the main provision. It is merely the form in whichCC Construction executes the instant project on behalf of AA General Construction and its name is changed to the owner of the key housing, and AA General Construction cannot be deemed as the actual implementer of the instant project and the owner of the housing at issue, and thus, the instant disposition cannot be deemed as violating the substance over form principle. Accordingly, the Plaintiff’s assertion is rejected.

① Since AA comprehensive construction has changed the owner of building permit for housing at issue from AA comprehensive construction to CC construction, AA comprehensive construction cannot be deemed as a "person who has obtained permission under Article 4(1)3 of the former Enforcement Decree of the Comprehensive Real Estate Tax Act and Article 4 of the Enforcement Rule of the Comprehensive Real Estate Tax Act."

② According to the 20 XX. X. performance agreement and the 20 XX. X. Construction and Business Agreement, the project implementer of the instant project and the contractor have been transferred from the financial institution, and the project implementer of the instant project performed the instant project while paying expenses incurred in implementing the instant project. Accordingly, the AA comprehensive construction paid approximately KRW 00 million to the CC Construction for the construction cost, KRW x0 billion for the project implementation of the instant project, and KRW 00 million to the OO, the vice president of the CC Construction, for the project implementation of the instant project. It is reasonable to view the project implementer of the instant project as not the AA comprehensive construction but the CC construction.

③ On the other hand, the AA General Construction andCC Construction agree that the owner and the implementer shall have the profit and risk to implement the project in the position of the actual implementer, and even if the motive that the AA General Construction has changed from AA General Construction toCC was due to lack of credit, the AA General Construction cannot obtain a loan from the financial institution as the implementer, it is the owner of the housing at issue as the actual implementer of the instant project, and it cannot be deemed that the AA General Construction is the owner of the housing under the name of the actual implementer.

④ As above, it is reasonable to view thatCC Construction was an owner of the housing at issue and the implementer and implementer of the instant project as the implementer and implementer of the instant project, and completed registration of preservation of ownership on the housing at issue. Thus, the housing at issue can be seen as a unsold housing unit in which AA comprehensive construction purchased the housing at issue fromCC Construction, regardless of the fact that the housing at issue may fall under the unsold housing unit which was built and owned byCC Construction.

3. Conclusion

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