[1] The method of interpreting the scope of a building included in a “house” under the provisions of the Local Tax Act or the Restriction of Special Local Taxation Act in a case where the term “house” is used, not “building”

[2] Whether a “house” subject to reduction of tax amount on acquisition tax under Article 40-2 of the former Restriction of Special Local Taxation Act includes officetels under the Building Act (negative)

[1] Article 6 Subparag. 4 of the former Local Tax Act (amended by Act No. 10924, Jul. 25, 201; hereinafter “Local Tax Act”) provides that officetels under the Building Act shall be subject to acquisition tax, and does not have any separate definition as to “house” in the Local Tax Act or the former Restriction of Special Local Taxation Act (amended by Act No. 10789, Jun. 7, 2011); and the Local Tax Act determines “house” as “a certain residential building (Article 13(5)3),” or “house” as “house under the provisions of subparagraph 1 of Article 2 of the Housing Act (Article 104 subparag. 3)” as “building under the provisions of Article 2 subparag. 4 of the Local Tax Act (Article 104 subparag. 3), and thus, the scope of “house” should be interpreted differently to include “house” as “house” under the provisions of the Local Tax Act or the Restriction of Special Local Taxation Act.

[2] In full view of the details of relevant provisions, such as the former Restriction of Special Local Taxation Act (amended by Act No. 10789, Jun. 7, 201) and the legislative purpose of Article 40-2 of the former Restriction of Special Local Taxation Act, “house” subject to reduction of the amount of acquisition tax under Article 40-2 of the former Restriction of Special Local Taxation Act is distinguishable from “building” under Article 6 subparag. 4 of the Local Tax Act, and an officetel under the Building Act does not include “house”.

[1] Article 40-2 of the former Restriction of Special Local Taxation Act (Amended by Act No. 10789, Jun. 7, 201); Article 6 subparag. 4, Article 13(5)3, and Article 104 subparag. 3 of the former Local Tax Act (Amended by Act No. 10924, Jul. 25, 201); Article 2(1)2 and (2) of the former Building Act (Amended by Act No. 10892, Jul. 21, 201); Article 3-4 [Attachment 1] subparagraph 14 of the former Enforcement Decree of the Building Act (Amended by Presidential Decree No. 2293, Jun. 29, 201); Article 2 subparag. 14 of the former Restriction of Special Local Taxation Act (Amended by Act No. 10924, Jun. 19, 201); Article 3-2 subparag. 19, 2014>

[1] Supreme Court Decision 2013Du10403 Decided October 17, 2013 (Gong2013Ha, 2089)

Plaintiff

The head of Seocheon-si Office

Seoul High Court Decision 2013Nu3261 decided July 3, 2013

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. A. Article 40-2 of the former Restriction of Special Local Taxation Act (amended by Act No. 10789, Jun. 7, 2011; hereinafter the same) provides that acquisition tax shall be reduced by 75/100 until December 31, 201 when acquiring a house, the tax base of acquisition tax under the Local Tax Act does not exceed KRW 900,000,000, and becomes one house (hereinafter “instant legal provisions”). However, Article 6 of the former Local Tax Act (amended by Act No. 10924, Jul. 25, 2011; hereinafter the “Local Tax Act”) defines the term “building” subject to acquisition tax under subparagraph 4 as “building and other facilities under Article 2(1)2 of the Building Act.”

Meanwhile, Article 2(1)2 of the former Building Act (amended by Act No. 10892, Jul. 21, 2011) provides that “A building with a roof and columns or walls among structures settled on land; facilities appurtenant thereto; an office, a performance hall, a shop, a garage, a garage, a warehouse installed on an underground or elevated structure; and other structures prescribed by Presidential Decree.” Article 2(2) of the same Act provides that a building shall be classified into detached houses ( Subparagraph 1), apartment houses ( Subparagraph 2), business facilities (Article 14), etc. according to its use; the detailed use of each usage shall be prescribed by Presidential Decree. Accordingly, Article 3-4 [Attachment Table 1] [Attachment 14] of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 2293, Jun. 29, 2011); and Article 3-4 of the same Act provides that a building, the type of which belongs to each usage, shall be divided into public business facilities and an officetel (which refers to one of the general business facilities publicly notified by the Minister of Land, Transport and Transport and Transport).

B. As can be seen, Article 6 Subparag. 4 of the Local Tax Act only provides that officetels under the Building Act fall under “building” which is subject to acquisition tax, and does not provide a separate definition as to “house” under the Local Tax Act or the Restriction of Special Local Taxation Act. As to acquisition tax, the Local Tax Act determines “high-class housing” as “specific residential building” (Article 13(5)3) or “housing” as “housing under Article 2 subparag. 1 of the Housing Act (Article 104 subparag. 3),” and the concept is inconsistent with the above “building.” As such, if an officetel uses the term “house” other than “building” under the Local Tax Act or the Restriction of Special Local Taxation Act, the scope of the building included in “house” should be interpreted differently in accordance with the purport and purpose of each provision (see Supreme Court Decision 2013Du10403, Oct. 17, 2013, etc.).

Meanwhile, Article 40-2 of the former Restriction of Special Local Taxation Act (amended by Act No. 732, Jan. 5, 2005; hereinafter “former Local Tax Act”). The purpose and purpose of introducing Article 273-2 of the former Local Tax Act (amended by Act No. 7332, Jan. 5, 2005; hereinafter “former Local Tax Act”) which provides that acquisition tax, etc. shall be reduced for the acquisition of housing caused by commercial transactions, such as the statutory provisions of this case. The purpose of introducing Article 273-2 of the former Local Tax Act is to reduce the taxpayer’s tax burden due to the increase in the tax base of acquisition tax due to the tax restructuring of real estate in 2005, such as the individual housing price and apartment housing price under the Public Notice of Values and Appraisal of Real Estate Act (hereinafter “Act on the Public Notice of Values and Appraisal of Real Estate”) and to promote housing transactions are the same as the purpose and purpose of the statutory provisions of this case. However, officetels under the Building Act does not include individual housing or apartment price publicly announced by the public notice.

In full view of the contents of the relevant provisions such as the former Restriction of Special Local Taxation Act and the legislative purpose of the instant provisions, “house” subject to the reduction of the amount of acquisition tax under the instant provisions is distinguishable from “building” under Article 6 subparag. 4 of the Local Tax Act, and an officetel under the Building Act is not included in “house”.

2. In the same purport, the lower court is justifiable to have determined that the rejection of the instant claim for correction was lawful on the grounds that the Plaintiff’s acquisition of the instant real estate, an officetel, for residential purpose, does not constitute acquisition tax subject to reduction or exemption under the instant legal provisions. In so doing, it did not err by misapprehending the legal doctrine on the scope of “housing” subject to reduction of acquisition tax as otherwise alleged in the grounds of appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)