Whether it falls under the requirements for exemption from special surtax on long-term rental houses

Where a rental house is transferred within five years after the completion of construction of the rental house, it shall not meet the requirements for exemption from special surtax on long-term rental house

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

1. Details of the instant disposition;

In full view of the evidence Nos. 1 and 2-1 through 3, evidence Nos. 3-16 through 25, and each of the statements and arguments Nos. 1 through 3, the circumstances leading up to the disposition of this case by the defendant are as follows.

가. 원고는 주택건설촉진법에 의하여 등록한 주택건설사업자로서 1987. 3. 24.ㅇㅇ ㅇㅇ군 ㅇㅇ면 ㅇㅇ리(현재는 ㅇㅇ시 ㅇㅇ동임) 277의 10 대 9,891 평방미터를 취득한 후 1989. 3. 29. 그 지상에 임대할 목적으로 1가구당 전용면적이 60 평방미터 이하인 임대주택(그 부수되는 토지는 법인세법 시행령 제124조의 3 제5항 의 범위 내에 속하는 것으로 보인다) 270세대를 신축하여 이를 타에 임대하였다가 자금난으로 임대를 계속할 수 없게 되자 당시의 관할관청인 ㅇㅇ도 ㅇㅇ군수로부터 1989. 9. 20. 48세대, 1990. 4. 21. 156세대 등 모두 204세대에 관하여 임대주택건설촉진법 제10조 , 같은 법 시행령(1991. 1. 8. 대통령령 제13246호로 개정되기 전의 것) 제6조 의 규정에 의한 허가(실제로는 임대주택 분양전환 승인임, 한편 위 ㅇㅇ군수는 위 허가에 관한 ㅇㅇ도지사의 승인을 받았다)를 받아 이를 그 무렵 임차인 등에 게 분양하였다.

B. On March 16, 1992, the Defendant: (a) transferred a rental house within five years after the completion of its construction; and (b) issued the instant disposition imposing corporate tax and defense tax on and from March 16, 1992 on the ground that the Plaintiff did not fall under the requirements for exemption from special surtax on the long-term rental house under Article 67-4(1) of the Regulation of Tax Reduction and Exemption Act; and (c) did not constitute a new construction

2. Whether the disposition of this case was unlawful

A. The parties' assertion

As to the defendant's assertion that the disposition of this case is legitimate on the grounds of the above disposition and the related Acts and subordinate statutes, the plaintiff's assertion that the disposition of this case is legitimate, because the plaintiff's sale with permission from the competent authority under the Rental Housing Construction Promotion Act, etc. in order to minimize the damage to the occupants of rental apartments, it should be deemed that the previous disposition of approval for the construction of rental houses is revoked and a separate new administrative disposition, such as approval for the construction of apartment houses, should be taken. Thus, the defendant's disposition of this case is unlawful since Article 124-3 (5) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14080, Dec. 31, 1993; hereinafter the same shall apply) should be excluded from the taxable object pursuant to Article 124-3 (5) of the above Enforcement Decree, if it is excluded from the application of Article 124-3 (5) of the above Enforcement Decree in comparison with the case of the owner of building constructed apartment for sale from the beginning.

(b) Review of relevant statutes;

In full view of Article 59-2 (1) of the Corporate Tax Act and Article 124-3 (5) of the Enforcement Decree of the same Act, where a house is newly built and sold as an exception to imposing special surtax on a corporation which acquired gains from the transfer of general land, etc., the land of a certain area attached to the house and its appurtenant thereto shall be excluded from the subject of special surtax, and where a house is transferred after the lapse of 50/100, and where a house is leased after the lapse of 10/100, 100, 10/100, and 10/10, 297-4 (1) of the Regulation of Tax Reduction and Exemption Act (amended by Act No. 4451 of Dec. 27, 1991) provides that the tax amount equivalent to the above-mentioned lease period under the Housing Construction Promotion Act shall be exempted, even if it was newly constructed on January 1, 1986 or newly built before December 31, 1985.

In addition, Article 10 of the Rental Housing Construction Promotion Act (amended by the Rental Housing Act, No. 3783, Apr. 1, 1994) provides that rental housing under the above Act shall not be sold in lots unless the period as prescribed by the Presidential Decree has elapsed. Article 6 (1) of the Enforcement Decree of the same Act provides that the sale in lots shall be restricted for five years except in case of the sale in lots to the leased operator. In case of the sale in lots before the expiration of the period, it shall be punished by imprisonment for not more than one year or by a fine not exceeding 10,000 won (Article 14 of the same Act). On the other hand, even within the period of sale restriction, in case of the rental housing constructed in Seoul Special Metropolitan City or Metropolitan Cities, if it is impossible to continue the lease due to any inevitable cause as prescribed by the Ordinance of the Ministry of Construction and Transportation, it shall be allowed by the head of the competent Si/Gun in case of the rental housing constructed in Seoul Special Metropolitan City or Metropolitan Cities.

C. Determination

(1) Therefore, in the case of this case, although the rental house was sold in lots with the permission of the competent authority, it is evident that the period of lease did not meet the requirements for reduction and exemption of special surtax under the Regulation of Tax Reduction and Exemption Act since the rental house was sold in lots with the permission given by the competent authority for not more than five years. Moreover, the permission under the Housing Construction Promotion Act was merely for the Plaintiff to dispose of the rental house that was not disposed of in another way for a certain period, and it cannot be deemed as a disposition for which the previous rental house construction approval was revoked and new apartment building construction approval was approved. Thus, the Plaintiff’s assertion that the above sale in lots constitutes a direct violation of Article 124-3(5) of the Enforcement Decree of the Corporate Tax Act is groundless.

(2) On the other hand, the interpretation of tax laws and regulations shall be strict and broad interpretation or analogical interpretation shall not be permitted, while the interpretation of tax laws and regulations shall be strict (see Supreme Court Decision 90Nu9797 delivered on July 9, 191, etc.). As seen earlier, since special surtax following the transfer of real estate is imposed generally and is excluded from the taxable object, it shall be deemed that such special surtax may be exempted or abated only if there are special provisions on non-taxation or reduction, and even if there are no special provisions, it shall be deemed that such provision is unfair as it unfairly expands the scope of reduction and exemption (see, e.g., this case where a rental house is sold after obtaining permission within the rental period, and there is no reasonable ground to treat a rental house differently from the case of newly constructing a house and selling it, and even if there is a greater need to protect it in the policy, such legislation should be respected unless it is based on a decision, and therefore, it shall not be deemed as a violation of the Constitution or a violation of the Constitution.

Therefore, it shall be deemed that the amended provisions under the Act on the Regulation of Tax Reduction and Exemption on December 27, 191 (it shall be applied from the tax year 192) shall not be reduced or exempted, and since there was no provision under the above Acts and subordinate statutes that reduce or exempt special surtax at the time of sale, the sale in lots shall not be subject to the corresponding special surtax and defense tax. Accordingly, in this case, Article 124-3 (5) of the Enforcement Decree of the Corporate Tax Act shall apply mutatis mutandis to the case of this case, and there is no ground for the above assertion that the above provision violates the Constitution or Article 18 (1) of the Framework Act on National Taxes without such interpretation. (At the same time, as seen above, the above amendment of the Act on the Regulation of Tax Reduction and Exemption of and Exemption from Taxes on December 27, 1991 (it shall be applied from the tax year 192), in the case of a rental house under the Rental Housing Construction Promotion Act which is leased for a period of 5 years to less than 10/100 of the previous special surtax.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation because the disposition of this case was unlawful, is without merit, and it is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.