In the case of acquisition of an officetel, leasing it to a residential purpose with an input tax deduction shall be subject to a revised report.

Even if the instant officetel was acquired for residential purpose and leased for residential purpose, it is subject to a revised value-added tax return as long as the initial input tax amount is deducted.

Article 6 of the former Value-Added Tax Act

2017Revocation of revocation of refusal to correct the value-added tax refund;

○ Kim

○ Head of tax office

November 15, 2017

December 20, 2017

1. The request for retrial of this case is dismissed.

2. The costs of retrial shall be borne by the plaintiff.

Cheong-gu Office

The decision subject to a retrial shall be revoked. The defendant (the defendant, hereinafter referred to as "the defendant") on August 31, 2015 (the plaintiff, hereinafter referred to as "the plaintiff")

The value-added tax refund for the second quarter of 201 for the plaintiff (hereinafter referred to as the "Plaintiff") 0,000,000

The disposition rejecting the correction of the value-added tax for KRW 0,00,000 shall be revoked.

1. The circumstances leading up to the disposition and the decision subject to review

The following facts are significant or obvious to this court in terms of records:

A. On October 11, 2010, ACB (representative Plaintiff) completed the registration of ownership transfer by selling the officetel No. 0000,000 (hereinafter “the instant officetel”) in lots at 00,000,000 (the partial supply price of the building is 00,000,000). On October 19, 2010, the Plaintiff was a general taxable person with the trade name as DD service, the location of the said office, the type of the officetel, the type of the real estate business, and the lease.

B. On December 10, 2010, the Plaintiff received a refund of KRW 0,000,000 of the value-added tax for KRW 00,000,000 from the Defendant regarding the value-added tax on the instant rent revenue from the instant officetel. On October 10, 2011, the Plaintiff received a refund of KRW 00,000,000 of the value-added tax for the amount of KRW 20,000,000 of the fixed asset input tax for the second period from the Defendant in 2011, and reported and paid the value-added tax on the said rent revenue from the second period to the first period from the date of the second period in 2011 to the first period in 2015.

C. On April 8, 2015, the Defendant sent a notice to the Plaintiff that “the Plaintiff acquired the said officetel for the purpose of taxable business and converted it to a tax-free business (house lease business).” On April 17, 2015, the Plaintiff filed a revised return of value-added tax with the Defendant on April 17, 2015, changing the tax amount of the value-added tax to KRW 00,000,000, and filed a revised return of the value-added tax for the second period of the Value-Added Tax (D services), and filed a report on the closure of the previous business registration (D services) on the same day, and filed a business registration for value-added tax-free business operators whose name is “AB”, and type of

D. On July 7, 2015, the Plaintiff asserted that the instant officetel, a quasi-housing, acquired and leased it to a house for the purpose of leasing it as a house, and therefore there was no fact that the said officetel was exempted from tax. The Plaintiff filed a claim for correction with the Defendant for refund of the value-added tax of KRW 00,000,000, which was the second time of value-added tax in 2011. On August 31, 2015, the Defendant issued a notice of refusal to file the said claim for correction (hereinafter “instant disposition”).

E. On June 24, 2016, the Plaintiff filed a lawsuit seeking revocation of the instant disposition on the same ground, and this case’s lawsuit was brought.

On September 22, 2016, the court rendered a judgment dismissing the Plaintiff’s claim (2016Guhap1203, hereinafter referred to as “the judgment subject to reexamination”).

The Seoul High Court (Seoul High Court) rendered a decision on April 12, 2017.

The judgment dismissing an appeal (2016Nu67730) was rendered, and the Supreme Court re-appealed by the Plaintiff, however, the Supreme Court

On August 24, 2017, a judgment subject to a retrial became final and conclusive by a final judgment of dismissal of an appeal (2017Du4406).

2. The assertion and judgment

A. The plaintiff's assertion

Article 2-2 subparag. 3 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 2254, Jul. 6, 2010; hereinafter the same) entered into force, an officetel was included in the scope of quasi-housing, and the Plaintiff acquired the instant officetel after the said provision enters into force. Therefore, the Plaintiff’s lease of the instant officetel for residential purpose was first exempted from taxation, and thus, it does not constitute the exclusive use of tax-free business.

The instant judgment subject to a retrial was omitted in the Plaintiff’s assertion that “The leasing of the instant officetels for residence does not constitute a non-exclusive use of tax exemption,” and this constitutes an important matter that may affect the judgment, and thus, the judgment subject to a retrial should be revoked.

B. Determination

1) According to Article 451(1) main text and 9 of the Civil Procedure Act, which applies mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, where "when a judgment is omitted with respect to important matters that may affect the judgment," a lawsuit for retrial may be brought against the final and conclusive judgment. "When a judgment is omitted with respect to important matters that may affect the judgment" refers to cases where a party submitted in a lawsuit and does not specify the judgment in the reasoning of the judgment with respect to those which affect the judgment," and as long as a judgment is rendered, it cannot be deemed an omission of judgment pursuant to the above Act, even if the grounds leading to the judgment are not clearly explained or the grounds rejecting the party's claims are not individually explained in a daily manner (see, e.g., Supreme Court Decision 2007Da69834, Nov. 27, 2008). In addition, the proviso to Article 451(1) of the Civil Procedure Act provides that "the same shall not apply where a party has asserted the grounds by appeal, or has not known them."

2) In this case, the Plaintiff filed a lawsuit seeking revocation of the instant disposition on the ground that the instant officetel, a quasi-housing, acquired and leased it to a house for the purpose of leasing it as a house, and that there was no exclusive use of tax exemption. The instant disposition was rendered on September 22, 2016 by this court. ② Although the Plaintiff appealed, Seoul High Court rendered a judgment dismissing the appeal (2016Nu67730) on April 12, 2017. The Plaintiff filed a second appeal on August 24, 2017, and the Supreme Court rendered a final judgment dismissing the appeal (2017Du4406) on August 24, 2017, which became final and conclusive. In addition, even if the Plaintiff acquired the instant officetel for the purpose of using it as a residence for the purpose of using it as a residence lease (house lease), the Plaintiff’s assertion that the instant disposition was not subject to the Plaintiff’s revised disposition on the premise that the instant disposition was not subject to the Plaintiff’s tax exemption under the Value-Added Tax Act.

According to the above facts of recognition, the judgment subject to a retrial includes a judgment on the plaintiff's assertion that "to rent an officetel as a residence does not constitute the exclusive use of tax exemption." Even if the judgment on the above assertion was omitted, the plaintiff asserted it by appeal and received a judgment on appeal. Thus, the grounds alleged by the plaintiff cannot be deemed as the grounds for retrial under Article 451 (1) 9 of the Civil Procedure Act.

3. Conclusion

As the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.