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(영문) 건축물대장에 소매점으로 등재되었으나 취득 당시 현황이 주택이므로 주택 유상거래세율을 적용하여야 한다는 청구주장의 당부
조세심판원 조세심판 | 2018-06-04 | 조심2018지0661 | 지방
【Request Number】

[Request Number] Trial 2018 0661 ( June 4, 2018)

[Items]

[C] Acquisition [Types of Determination]

[Summary of Decision]

[Determination] In light of the fact that granting tax benefits, such as the application of the commercial transaction rate of a house to a person who uses neighborhood living facilities, etc. as a house without obtaining permission from an administrative agency, does not comply with the principle of tax equity, and that the individual house price of the building at issue was determined and publicly notified at the time of the claimant's acquisition, or the disposition agency imposed property tax on the building at issue, and it cannot be deemed as acquisition of a house, the building at issue does not constitute a house subject to the commercial transaction rate of a house regardless of whether the current status at the time of acquisition is a house or not, and thus, the disposition agency did not err in disposition of refusing to

[Related Acts]

[Related Acts and subordinate statutes] Article 11 (1) of the Local Tax Act

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. On July 17, 2017, the applicants jointly acquired 77 square meters of land located in OO and 149.81 square meters of a building (including annexed land; hereinafter “this building”) and reported and paid OOOO (hereinafter “OOOOO”) that is calculated by applying the tax rate under Article 11(1)7 (b) of the Local Tax Act (amended by Act No. 14475, Dec. 27, 2016; hereinafter the same shall apply) with the acquisition price OOO as the tax base.

B. On August 8, 2017, the claimant filed a claim for correction to the effect that the 115.23 square meters (including the ground floor, the 2nd floor, the 3rd floor, and the land annexed thereto; hereinafter referred to as “marketing building”) among the instant buildings are registered as retail stores in the building ledger. However, since the building is actually used as a house, the acquisition tax, etc. should be corrected by applying the tax rate under Article 11(1)8 of the Local Tax Act (10/100). However, the disposition agency rejected the claim on September 27, 2017.

C. The claimant filed an appeal on September 27, 2017 on March 13, 2018.

2. The claimant's arguments and the disposition authority's opinions

A. The claimant's assertion

This building is a building with approval for use on September 8, 1989 and is registered as retail store in the building ledger, but it is actually used as a house before the amendment of the Building Act by Act No. 7696 of Nov. 8, 2005, and it is possible to construct the building without a construction permit or building report under the Building Act (referring to the Act before the amendment by Act No. 7696) in the first place of suspension of Article 11(1)8 of the Local Tax Act as amended by Act No. 14475 of Dec. 27, 2016, since the housing not entered in the building ledger is also a house not entered in the building ledger, it shall be applied to the acquisition tax rate of 100 million won for each house subject to the acquisition tax rate of 100 million won for each house.

(b) Opinions of disposition agencies;

Although the overall provision of suspension under Article 11 (1) 8 of the Local Tax Act is not registered in the building ledger as a house, it is reasonable that the disposition authority refuses to request for correction of acquisition tax, etc. since it is not subject to the application of the permission for construction and approval for use in the retail store, such as the main building that the Building Act applies to the acquisition of an unauthorized house which is cultivated under the Building Act, but is subject to the permission for construction and use.

3. Hearing and determination

A. Key issue

The adequacy of the claim claim that the tax rate for the housing should be applied because the current status of the building was recorded in the building ledger as retail store at the time of acquisition.

(b) Relevant Acts and subordinate statutes: To enter in the attached Form;

C. Facts and determination

(1) According to the review materials submitted by the claimant and the agency, the following facts are revealed.

(A) On March 21, 1989, this building was constructed at retail stores and obtained a building permit and approved for use on August 8, 1989, and the uses recorded in the building ledger and the status of applicants at the time of acquisition are as follows:

The use and acquisition of the building ledger of this building shall be the current status at the time of acquisition.

(unit: Site size)

At the time of the acquisition of the ledger of non-high-rise buildings (house) of the current land floor 46.07 retail store, housing dispute store, 1 floor 34.58 retail store, 24.58 retail store, 34.58 retail store, 34.58 retail store, 34.58 retail store, 149.81

(B) On July 17, 2017, the petitioners reported and paid the OO, including acquisition tax, calculated by applying the tax rate under Article 11(1)7 (b) of the Local Tax Act (40/1,00) to the OO and calculated by applying the said rate.

(C) Since the claimant used the building as a house before acquiring it, the disposition agency determined and publicly notified the individual housing price (OO as of January 1, 2017) of the building at issue, and imposed and notified the property tax on the house.

(D) Upon filing an application for rectification of acquisition tax, etc., the claimant: (a) deemed the acquisition priceOO of the building in question as individual transaction subject; and (b) calculated the acquisition price by each floor in proportion to the statutory standard price for each floor; (c) in the case of the first floor, the tax rate of 40/1,000 shall be applied to the acquisition price; and (d) in the case of the remaining (in the case of the first floor), the tax amount calculated by applying the tax rate of 10/1,000 shall be deemed the acquisition price by each floor to be not more than O00 million won;

(2) In cases of Article 11(1)8 of the Local Tax Act prior to the amendment by Act No. 14475 of December 27, 2016, a house under Article 2 subparag. 1 of the Housing Act is entered into a house in the building ledger under Article 38 of the Building Act, and only when the purpose of use of the building is residential, it appears to be subject to the acquisition tax rate for the value-added transaction of the house. However, in cases of Article 11(1)8 of the current Local Tax Act, which was enforced from January 1, 2017, which was possible without a building permit or building report pursuant to the Building Act, which was not entered in the building ledger, the acquisition tax rate for the value-added transaction of the house shall apply to the house as a house, and Article 8(1) of the Building Act amended by Act No. 7696 of November 8, 2005, which was amended by Act No. 7696 of Nov. 8, 2005, each of the building reports shall be deleted.

(3) Comprehensively taking into account the facts and relevant laws, it is consistent with the principle of strict interpretation of tax laws and regulations to regard a house that can be constructed without a building permit or building report pursuant to Article 11(1)8 of the Local Tax Act as only a newly constructed house without obtaining a building permit, etc. pursuant to the Building Act prior to the amendment by Act No. 7696 of Nov. 8, 2005. This building constitutes a building for which approval for use is obtained as a retail store after obtaining a building permit pursuant to the relevant Acts and subordinate statutes. The key building is a building used as a house by changing its use without obtaining permission from an administrative agency without obtaining a building permit, etc. under the Building Act before the amendment by Act No. 7696 of Nov. 8, 2005. Since it does not constitute a house that can be constructed without obtaining a building permit, granting a tax benefit, such as acquisition tax rate applied to a house for consideration transaction to a house using neighborhood living facilities, etc. without obtaining a building permit from an administrative agency, it does not correspond to the taxation authority's issue or public notice of the house.

4. Conclusion

This case shall be decided as ordered by Article 96 (6) of the Framework Act on Local Taxes and Article 81 and Article 65 (1) 2 of the Framework Act on National Taxes because the petition for adjudication is groundless as a result of the deliberation.

The attached Form shall be attached thereto.

Relevant Acts and subordinate statutes

(1) Local Tax Act (amended by Act No. 14475, Dec. 27, 2016)

Article 11 [Tax Rate on Acquisition of Real Estate] (1) The amount of acquisition tax on real estate shall be calculated by applying the following standard tax rates to the tax base under Article 10:

8. Notwithstanding subparagraph 7 (b), a house the value of which as at the time of acquisition under Article 10 does not exceed 600 million won due to onerous transactions [in cases of a house under subparagraph 1 of Article 2 of the Housing Act, which can be constructed without a building permit or building report (including cases deemed to have been granted a building permit or building report under Article 3 of the Addenda of the Building Act (Act No. 7696)) pursuant to the Building Act, and which is not entered in the building ledger, it shall be deemed a house entered in the building ledger]. The purpose of use of the building is residence [referring to home childcare centers under subparagraph 5 of Article 10 of the Infant Care Act, communal homes, regional centers for children under Article 52 (1) 4 and 8 of the Child Welfare Act (including cases where integrated housing is established under paragraph (2) of the same Article) and land annexed to the welfare of the aged under Article 31 of the Welfare Act, referring to the rate of more than 100 million won, and land annexed to the welfare of the aged shall be excluded;

(2) Local Tax Act (Amended by Act No. 14475, Dec. 27, 2016)

Article 11 [Tax Rate on Acquisition of Real Estate] (1) The amount of acquisition tax on real estate shall be calculated by applying the following standard tax rates to the tax base under Article 10:

8. Notwithstanding subparagraph 7 (b), where a house, the value of which as at the time of acquisition under Article 10 does not exceed 600 million won due to onerous transactions [referring to a house defined in subparagraph 1 of Article 2 of the Housing Act, which is entered into a house in a building ledger under Article 38 of the Building Act, and the use of which is residential [referring to a house used as a family childcare facility defined in subparagraph 5 of Article 10 of the Infant Care Act, a communal home or local child center defined in Article 52 (1) 4 and 8 of the Child Welfare Act (including cases where a consolidated establishment is made pursuant to paragraph (2) of the same Article) and a facility used for a residential purpose; hereafter the same shall apply in this Article] and land annexed thereto, the tax rate of 10/1,00,000, in cases of acquiring a house exceeding 60 million won, and the tax rate of 20/1,000, in cases of acquiring a house exceeding 90,000 won, respectively;

(3) The Building Act (amended by Act No. 7696 of Nov. 8, 2005)

Article 8 [Building Permits] (1) A person who intends to construct or repair any of the following buildings shall obtain permission from the head of a Si/Gun/Gu: Provided, That where he/she intends to construct a building of 21 stories or more, which is the use or scale prescribed by Presidential Decree, such as a building, in the Special Metropolitan City or Metropolitan City, he/she shall obtain permission from the

1. A person who intends to construct or repair a building in an urban area or a Class-II district unit planning zone designated under the National Land Planning and Utilization Act;

2. A person who desires to construct or repair a building on a large scale in a zone determined by the Presidential Decree;

3. A person who intends to construct or make a large-scale repair on a building with the total floor area of 200 square meters or more or with three stories or more (including the case where the total floor area of the building becomes 200 square meters or more, or has three stories or more as a result of the extension in the case of extension) in any area or zone other than the area or zone

Article 9 [Construction Report] (1) Where a building subject to permission falling under the provisions of Article 8 falls under any of the following subparagraphs, a building permit shall be deemed to have been granted by reporting in advance to the head of a Si/Gun/Gu as prescribed by the Ordinance of

1. Extension, renovation or reconstruction of the total floor area of 85 square meters or less;

2. Construction or substantial repair of a small-scale house, stable, or warehouse necessary for the operation of agriculture and fishery, which is located in an area and of a scale prescribed by Presidential Decree;

3. Substantial repair;

4. Buildings constructed in a Class II district unit planning zone under the National Land Planning and Utilization Act, the total floor area of which is less than 100 square meters;

(4) Building Act (amended by Act No. 7696 of Nov. 8, 2005)

Article 8 [Building Permission] (Construction Permission] (1) A person who intends to construct or repair a building shall obtain permission from the head of a Si/Gun/Gu: Provided, That where he/she intends to construct a building of 21 or more floors and the use and size of which are prescribed by Presidential Decree in the Special Metropolitan City or Metropolitan Cities, he/she shall

Article 9 [Construction Report] (1) Where a building subject to permission falling under the provisions of Article 8 falls under any of the following subparagraphs, a building permit shall be deemed granted by reporting in advance to the head of a Si/Gun/Gu as prescribed by the Ordinance of the Ministry

1. Extension, renovation or reconstruction of the total floor area of 85 square meters or less;

2. Construction of a building with a total floor area of less than 200 square meters and less than three floors in a controlled area, an agricultural and forest area, or a natural environment conservation area under the National Land Planning and Utilization Act: Provided, That construction of a building within the Class-II district unit planning

3. Substantial repair (limited to substantial repair of a building with a total floor area of less than 200 square meters and less than three floors);

4. Deleted;

5. Other small buildings as determined by the Presidential Decree.

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