209Guhap3355 Revocation of Disposition of Imposing capital gains tax

○○ Kim (48 years old, male)

Ansan-gu

1. The term "abrication" means "abrication" means "abrication" means

Head of Central Tax Office

Litigation Performers KimO, SOO

April 29, 2010

May 27, 2010

1. The Defendant’s disposition of imposition of capital gains tax of KRW 596, 129, 950 against the Plaintiff on December 14, 2007 shall be revoked.

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

The order is as set forth in the text.

1. Details of disposition;

A. On October 15, 2001, the Plaintiff concluded a sales contract with a stock company A and with the price of KRW 678,472,00,00 for the △△dong 00 ground reinforced concrete building 46, Gangnam-gu, Seoul (hereinafter “instant housing”).

B. After that, on June 28, 2004, the registration of ownership transfer was filed in the Plaintiff’s future with respect to the instant house. The instant house is indicated as the area of 857 square meters in the indication column of collective building register or the section of exclusive ownership in the real estate register.

C. On June 11, 2005, the Plaintiff sold the instant house to B and C for KRW 2,785,00,000, and on July 29, 2005, the ownership transfer registration was completed in B and C on July 29, 2005.

D. In accordance with Article 99(1) of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002), the Plaintiff again referred to the reduction or exemption of capital gains tax due to the transfer of the instant house and voluntarily paid KRW 153,645,500 for special rural development tax.

E. As to this, the Defendant issued a correction and notification of KRW 596,129,950 to the Plaintiff on December 14, 2007, on December 14, 2007, on the ground that the Plaintiff’s exclusive use area exceeds 165 square meters, since a balcony exists inside the building outer wall, unlike general apartments installed with a balcony outside the outer wall of the building due to the characteristics of the city public law, such as Curtain construction method. In this case, the Defendant issued a correction and notification of KRW 596,129,950 to the Plaintiff on December 14, 2007, on the ground that the Plaintiff’s exclusive use area exceeds 165 square meters, which is a requirement for capital gains tax reduction or exemption (hereinafter “instant disposition”).

F. On December 30, 2008, the Plaintiff filed an appeal seeking revocation of the instant disposition with the Tax Tribunal, and the Tax Tribunal dismissed the said appeal on December 30, 2008.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 9, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination of legality of the instant disposition

A. The plaintiff's assertion

The concept of "exclusive use area" in the provisions concerning the requirements for high-class houses under the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002) is a so-called loan that does not have a separate definition in the same Act or its Enforcement Decree. The former Enforcement Rule of the Housing Construction Promotion Act (amended by Act No. 2003, Dec. 12, 200

15. According to Article 17(2)2 of the Ministry of Construction and Transportation Ordinance, in the case of apartment houses, the area for exclusive use shall be calculated based on the internal line of outer walls, but the area for common use shall be excluded from the area for common use. In the case of apartment houses, the balcony area was a separate service area not included in the area for exclusive use, and the construction-related administration has repeatedly verified it for several hundred and eight years, and the balcony area was excluded from the area for common use in the public register, such as the building ledger or the real estate registration ledger, and the tax authorities have handled the business based on the area for exclusive use in the public register. Nevertheless, unlike the previous one, the balcony area was included in the area for exclusive use and excluded from the object of the reduction or exemption of capital gains tax under the Restriction of Special Taxation Act is unlawful against the principle of strict interpretation and the principle of substantial taxation contrary to the principle of substantial taxation.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) Key issues of the instant case

According to Article 99(1) of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002), Article 29(1) of the Addenda of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002), Article 89 subparag. 3 of the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), and Article 156 subparag. 2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002), the tax authorities shall reduce or exempt all transfer income tax on any income accruing from transfer of a newly-built house from a housing construction proprietor within five years from the date of its acquisition, and in cases of a newly-built house with high-class high-class house (in cases of an apartment house, the exclusive use area of which is 165m or more at the time of transfer, and the reduction or exemption provisions shall not apply.

The fact that the actual transaction price of the instant house exceeds 600,00,000 won at the time of transfer, and that the area for exclusive use by the public account book of the instant house does not meet the high-class housing standard, but the fact that the area for exclusive use by public account book includes balcony area in the area for exclusive use by public account book is satisfied the high-class housing standard.

Therefore, the issue of this case is whether the balcony area should be included in the exclusive area in judging whether it is a high-class house.

2) The provision concerning the calculation of the area of the collective housing

Article 156 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002) introduced the concept of "exclusive area" in relation to the scope of high-class houses, but does not define it.

However, Article 11-5 subparag. 1 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 18146 of Nov. 29, 2003) and Article 17(1) and (2) of the Enforcement Rule of the same Act (amended by Presidential Decree No. 382 of the Ministry of Construction and Transportation of Dec. 12, 2003) introduce the concept of "exclusive area" in cases of multi-family housing, the exclusive area shall be calculated on the basis of the internal line of the outer wall, but the area of common area shall be excluded. Article 2 subparag. 3 of the current Housing Construction Act also prescribes the same.

Furthermore, Article 89 subparagraph 3 of the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002) and Article 156 subparagraph 2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002), the concept of "national housing" is used in determining the income tax exemption on one house for one household under Article 96 subparagraph 2 of the Enforcement Decree of the same Act, special taxation on capital gains under Article 92-2 subparagraph 1-2 of the Enforcement Decree of the Corporate Tax Act, deduction of housing funds under Article 112 (1) of the Enforcement Decree of the Income Tax Act, rental housing under Article 3 (1) of the Enforcement Decree of the Gross Real Estate Tax Act, etc.

Meanwhile, Enforcement Decree of the Building Act (amended by Presidential Decree No. 19163 of Dec. 2, 2005)

Article 119 (1) of the Act on the Ownership and Management of Aggregate Buildings defines the horizontal plane projection area of the part enclosed by the central line of the wall, column, or other similar division of each floor of a building as "floor area", regardless of whether railing, etc. is installed, the floor area of the streetcar, etc. (referring to the area from the central line of the outer wall to the last part of the streetcar, etc.) provides that the area obtained by subtracting a value obtained by multiplying the length abutting on the longest, etc. abutting on the highest outer wall abutting on the streetcar, etc. by 1.5 meters from the floor area shall be included in the floor area, and Articles 2 (3) and 54 (2) 3 of the Act on the Ownership and Management of Aggregate Buildings define the part of the building, which is the object of sectional ownership, as "exclusive ownership area"

3) The concept of "balcony" and its alteration process

The concept of ‘balking' or ‘balcony' has been used for a long time, but the related laws do not have any direct provision on ‘balcony' in Article 119 (1) 3 (c) of the Enforcement Decree of the Building Act, and use the expression ‘balcony' in Article 119 (1) 3 (c) of the Enforcement Decree of the Building Act, which appears to be similar to this, and the Enforcement Decree of the Building Act was amended by Presidential Decree No. 19163 on December 2, 2005, Article 2 (1) 15 of the Building Act defines ‘balcony as a buffer space connecting the inside and outside of the building, which is installed in addition to the outer wall of the building for the purpose of prospect and rest.

A balcony in the apartment houses in Korea is generally separated from a room, a living room, a kitchen and a bath room (hereinafter referred to as the "main body"), and is divided into a space attached to the front or the rear side of the apartment house, a part of the main body is divided into a wall, a door, a window, etc. Unlike the main body, there is no heating facility, water is installed. The floor is installed with materials such as others for the use of water, the wall is treated in a painting, and a warehouse is often attached to a storage.

In Korea, the early balcony was protruding out of the outer wall, and it was inevitable to open to the outside inevitably due to these structural characteristics. Since the diffusion and distribution of apartment units represented by apartment units, construction companies began to provide more wide balcony than the so-called service area according to the needs of housing consumers without increase in the sale price. As a result, balcony was set up as soon as possible, water use, or storage of things inappropriate for indoor storage, and its size has increased gradually and it is difficult to install the same structure as this body because it was installed in the same structure as the outer wall for a considerable long time. Accordingly, in the case of a general apartment, a reinforced concrete wall serving as a bearing wall in the body of the main body and its outer structure has been installed, and the outer structure and size of the apartment units have also been built as a reinforced concrete or building wall in the outer height and size as well as the outer structure of the apartment units, and the remainder of the apartment units have been installed as an open space and an open space in the general administration space.

According to the provisions of Article 18 (3) of the Framework Act on National Taxes, after the interpretation of tax-related Acts or practices in tax administration has been generally accepted by taxpayers, any act or computation according to such interpretation or practices shall be deemed legitimate, and no tax shall be imposed retroactively by a new interpretation or practice.

In full view of the aforementioned evidence, Gap's evidence Nos. 4, 5, 6, and 8-1 through 53-1 and 53, the whole purport of the arguments and arguments is as follows: ① In selling apartment houses, the construction industry has treated the balcony area as "service area" in the contract area, and the transaction practices that do not include it in the contract area or the supply area are rarely established, and the buyer and the general public, including the buyer, have recognized it as natural. ② Such practices are kept in the building permission or the construction project plan approval, and the permission authority or approval authority has determined whether to permit or approve the balcony with the exception of the total floor area of the balcony. ③ However, the Seoul Special Metropolitan City has established building deliberation standards that include the balcony area in the case of the main apartment building with a large number of floors constructed after the plaintiff acquired the housing in this case, and had established the criteria for deliberation by the construction committee in the case of the main apartment building, which is the exclusive ownership or the exclusive ownership area under the Act on the Establishment and Management of Aggregate Buildings and the exclusive ownership area under the Act.

Accordingly, in the transaction of multi-family housing among the general public, the price is determined mainly on the basis of the exclusive area of the public register - the price of the balcony area is not separately interested, and in various reports related to taxes, practices on the basis of the exclusive area of the public register excluding the balcony area have been established, and even in cases where tax authorities impose taxes, "exclusive area of the public register" is the basis for this "exclusive area of the section for exclusive use of the public register."

B. Moreover, in the instant case, A Co., Ltd., which supplied the instant housing, has trusted this practice and constructed the instant housing with the exclusive area of 165m square meters (excluding balcony area) with a certain size of 156m square meters under the statutes at the time, and the Plaintiff appears to have purchased the instant housing by reliance on such practice.

Considering the circumstances, the administrative practices related to housing and construction, which do not include the balcony area in the exclusive use area of multi-family housing, have been established, and the practical practices which accept the exclusive use area in the public register as it is in tax administration have been established, and this has been established.

This practice seems to have been generally accepted by taxpayers. 5) Real estate register, manager of a building ledger, legal nature of a building ledger.

One of the main management purposes of the real estate register and building register is the promptness and accuracy of the tax collection. Unlike other documents, the accuracy of each entry in the real estate register and building register managed by the state is presumed to be legal or factual.

In order to achieve the basis taxation principle, the tax authorities should levy taxes according to the matters entered in the real estate register and building register, except in extenuating circumstances, and this necessity is required more in standardized and large-scale aggregate buildings.

If the tax authority permits taxation different from the area of the section for exclusive use entered in the real estate register and building register, such promptness and accuracy may be damaged.

Therefore, in order for the tax authorities to include and impose the balcony area in the area for exclusive use of multi-family housing, they should reflect it in the real estate register and building ledger managed by the State, or if there is no such reflection, there is no evidence or explicit taxation provision that can recognize the above circumstances in this case.

6) Determination on the Defendant’s assertion on the public law of Crash Crash Crash

The defendant asserts that the laws governing general apartments and main complex buildings are different, and, in particular, the main complex building using construction method in order to lose its structural openness and thus does not fall under the 'dle of the Building Act' under the Building Act. Therefore, general apartments and main complex buildings should be viewed differently.

In general, the term "crard" means a building construction method, unlike the load bearing walls under the bottom of a building, which installs a panel made in advance at a factory, etc. in constructing a high-rise building, where it is difficult to install a vision mainly, with a panel made at a factory, etc.

In light of the above, there is a lot of room to view that a building or an outer wall stipulated in the laws and regulations related to housing or construction is installed in a building in the same way as a building, from the point of view of blocking the inside and outside of the building. However, in the case of a general apartment as seen earlier, it is difficult to view that there is a qualitative difference between the outer wall and the outer wall of a general apartment balcony and the outer wall of a main apartment building, and if there is a difference, it is difficult to view that a structural balcony is installed in the outside of the building and the outer wall of the building, not simply with the outer wall, but with the main body in the middle or both sides of the balcony, a reinforced concrete wall, which serves as a pole and bearing wall together with the main body, and a reinforced concrete wall is built in a considerable height and area, and it is general to install a window in the remaining open space. For this reason, it is difficult to treat it differently in tax administration on the ground that there is a technical difference between it and that it is installed in tax administration.

Furthermore, in general, apartment buildings are subject to the former Housing Construction Promotion Act or the current Housing Construction Promotion Act, but there is no difference in that they are residential purposes, and the Ministry of Land, Transport and Maritime Affairs interpret that the provisions of the Housing Act shall apply mutatis mutandis to the calculation method of exclusive use area, etc., in the case of main apartment buildings. If "Nomb" is defined as a structure exposed to the outside of the building, it is generally the same as the main body, and there is no difference in that the balcony installed with the outer wall and window can not be included in the class of street under the Building Act. Furthermore, Articles 2 and 3 of the Enforcement Decree of the Building Act, which are amended by Presidential Decree No. 19163, Dec. 2, 2005, are used as a combined apartment or apartment building installed in the house upon application for construction permission before the enforcement of the above Enforcement Decree, and in the case of the balcony installed in the house, it is assumed that it can be used as a design or apartment building, etc. under the revised provisions of the Building Act, even if it does not appear to be seen in the general floor area.

7) Sub-decisions

In the case of the former taking the apartment of the method of construction, which is similar to the main apartment building, differently from the general apartment, to include the balcony area in the exclusive use area in the case of the former, it is illegal as it goes against the national tax administration practice accepted by the taxpayer.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.

Judge Ma-gu of the presiding judge

Judge Lee Jae-young

Judges Kim Min-young