National High Court Decision 2006No3934 (Law No. 29, 2007)

Whether the balcony area can be included in the exclusive use area in cases where the outer wall of the apartment is constructed by a studing method.

In trading multi-family housing, the balcony area is recognized as a service area, and the customs office has established the practice of making the section of exclusive ownership entered in the public register as the taxation data, and it is generally accepted by the taxpayers.

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

1. The Defendant’s imposition disposition of KRW 274,156,930 against the Plaintiff on September 1, 2006 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

same as the entry.

1. Circumstances of the disposition;

A. On September 11, 2001, the Plaintiff entered into a contract with ○○ Heavy Industries Co., Ltd., Ltd., a housing developer, to purchase KRW 82.490,000,00 from ○○○○, Gangnam-gu, Seoul, 467-17, and one parcel of land, the main apartment of the steel-framed reinforced concrete structure, the main apartment house of the steel-framed reinforced concrete structure, and paid the down payment. The above contract for sale is marked as the exclusive use area of the apartment of this case as 164.987 square meters.

B. After that, the apartment of this case was approved on February 28, 2003, and thereafter, the registration of ownership was completed in the name of ○○ Heavy Industries Co., Ltd. on or around May 9, 2003. The plaintiff paid the remaining sale price to the above company and completed the registration of ownership transfer on the apartment of this case, and transferred the apartment of this case to the non-party 1.6 billion won on October 7, 2003. In the process, the apartment of this case was indicated as the area in the indication column of the aggregate building register or the building for exclusive use of real estate.

C. The plaintiff around October 2003, the transfer of the apartment of this case to the defendant from the housing construction business operator.

Article 99-3 (1) 1 of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002) provides that a house acquired within five years after entering into a sales contract during the newly-built house acquisition period (from May 23, 2001 to June 30, 2003) constitutes a case of transfer of a house acquired within five years.

D. As to this, the Defendant: (a) stated in the public record the exclusive area of 164.9 square meters or this case; and (b) stated the apartment as the main apartment building in the construction method of construction, unlike general apartments installed with balcony outside the outer wall of the building, the apartment building inside the building of this case is installed on the outer wall of the building; (c) so, in the case of balcony, the apartment building of this case shall include 35.68 square meters of the total balcony in the exclusive area of the apartment of this case because its exclusive area of 165 square meters exceeds 165 square meters; (c) on September 1, 2006, the Defendant did not accept the Plaintiff’s above application for reduction and exemption of capital gains tax; and (d) notified the Plaintiff that the apartment building of this case constitutes a high-class house that is exempt from capital gains tax reduction and exemption under the provisions of the Act on Special Cases Concerning Taxation; and (d) on September 1, 2006, the Plaintiff did not file an appeal for exemption from capital gains tax on the remaining 601 square meters.6.

2. Whether the disposition is lawful;

A. Summary of the plaintiff's principal

Income Tax Act (before it was amended by Act No. 6781 of December 18, 2002) requirements for higher-class houses

The concept of "exclusive area" in the provisions on the above law or its Enforcement Decree is the so-called loan concept that does not have a separate definition provision on the above law, and according to the provisions of Article 17 (2) 2 of the former Enforcement Rule of the Housing Construction Promotion Act (wholly amended by Presidential Decree No. 382 of Dec. 15, 2003), in the case of apartment houses, the exclusive area shall be calculated based on the inside of the outer wall, but the area of the common area shall be excluded from the area of the common area. In the case of apartment houses, the balcony area was a transactional established practice to treat "a separate service area" as "a separate service area not included in the exclusive area. In the case of apartment houses, it has been repeatedly confirmed that the building ledger is excluded from the total area of balcony on the public register such as the real estate register, and it has been dealt with as the basis of the exclusive area on the public register of taxation authorities, but it is unlawful to exclude the area of the apartment from the subject of reduction or exemption of the transfer income tax in accordance with the above principle.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The dispute of this case

According to Article 99-3(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. 1751 of Oct. 1, 2002), where a resident concludes a sales contract for a house acquired from a housing construction business operator by paying a down payment, and transfers the house (newly-built house from May 23, 2001 to June 30, 2003) within five years from the acquisition date, he/she shall enter into the sales contract for the exclusive use area of a high-class house, including the down payment.

As seen earlier, the instant apartment does not exceed KRW 60 million at the time of transfer, but the area for exclusive use in the public record does not meet the above high-class housing standards, but if the area for exclusive use in the public record includes the balcony area, it can meet the high-class housing standards. As such, the issue of the instant apartment is whether the balcony area should be included in the area for exclusive use in determining whether it constitutes the high-class house of the instant apartment.

(2) The legal provision concerning the area calculation of the apartment

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 Ordinance of the Ministry of Construction and Transportation No. 382 of Dec. 15, 2003) introduced the concept of "exclusive area" in the case of multi-family housing, the exclusive area shall be calculated based on the inside line of the outer wall, but the area of the exclusive area shall be excluded, while the multi-family housing with an exclusive area of 85 square meters or less is classified as national housing. Article 2 subparag. 3 of the Housing Act also

Furthermore, Article 89 subparag. 3 of the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 156 subparag. 2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002), the exemption from the transfer income tax for one household under Article 92-2(2) subparag. 1-2 of the Enforcement Decree of the Corporate Tax Act, the exemption from the transfer income tax for the transfer income under Article 92-2(2) subparag. 1-2 of the Enforcement Decree of the Corporate Tax Act, the exemption from the deduction for three houses for a house owner under Article 112(1) of the Enforcement Decree of the Income Tax Act, the exemption from the deduction for three houses for one household under Article 167-3(1) subparag. 2 (c) of the Enforcement Decree of the Restriction of Special Taxation Act, the exemption from the addition of the total real estate holding tax under Article 51-2 of the Enforcement Decree of the Local Tax Act.

The concept of ‘national housing' is used.

Meanwhile, Article 119(1) of the Enforcement Decree of the Building Act (amended by Presidential Decree No. 19163, Dec. 2, 2005) defines each floor of a building or part of it, which is "floor area", as "the horizontal plane projection area of the part enclosed by the center line of walls, columns, or other similar partitions", and stipulates that the floor area of the building is calculated by subtracting the floor area of the building from the floor area of the strip, etc. (referring to the area from the center line of the outer wall to the edge of the strip, etc.) the length abutting on the longer outer wall abutting on the oars, etc. by 1.5 meters (referring to the area from the edge of the outer wall to the edge of the strip, etc.), regardless of whether columns or bearing walls are installed or not, Article 25 subparag. 3 of the Act on the Ownership and Management of Aggregate Buildings provides that the section of exclusive ownership is to be registered in the ledger, under Article 25 subparag. 34 of the Act on the Ownership and Management of Aggregate Buildings.

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

The concept of ‘balconc or balcony' (in the Enforcement Decree of the Building Act amended by Presidential Decree No. 19163, Dec. 2, 2005, as seen below, it introduced the concept of ‘balconc' and used it in the terms of ‘balconc with the term of ‘balconc with the term of ‘balconc with the term of ‘balconc') in multi-family housing for a long time, however, there is no direct provision in the related Acts and subordinate statutes on ‘balconc with the floor area' under Article 119(1)3(c) of the Enforcement Decree of the Building Act, and it uses the expression of ‘balconc with the meaning of similar meaning' under Article 19(1)3(c) of the Enforcement Decree of the Building Act, and the Enforcement Decree of the Building Act was amended by Presidential Decree No. 19163, Dec. 2, 2005; the term ‘balconc with the outer wall for the purpose of prospect, rest.

A balcony in a multi-family housing in Korea is generally separated from a room, a room, a kitchen, and a bath room (hereinafter referred to as a "main body") to be attached to the front or the rear side of a multi-family housing, and the main body is separated from a part of a wall, a door, a window, etc. from the main body. There are no heating facilities unlike the main body. The floor is installed with materials such as others for water use, and the wall is finished with a door so that water can be used, and a storage is commonly kept.

In Korea, the emergence of balcony in apartment houses is known to be the first place by the Korea-U.S. Foundation in 1958. The early balcony was protruding out of the outer wall, due to these structural characteristics, and its size was small. Since apartment houses represented by apartment houses have been spread and supplied, it is necessary for the people to live in the past only in the apartment house to adapt to the new residential environment of apartment houses, and in that process, the space of "mail" has been destroyed. Accordingly, construction companies have started to provide a balcony more wide area as a space to meet the needs of housing users by providing a building without increase in the purchase price of the balcony. On the other hand, it is difficult to install a balcony as soon as it has been installed in the apartment house, to use water, to store or use water in the apartment house, and to maintain the outer wall more than the outer wall of the apartment building with a height of the outer wall installed in the outer wall of the apartment building than the outer wall of the apartment building with a height of the outer wall of the building.

(4) Entry and attitude of building administration and tax administration on the balcony of apartment houses

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 purport of the argument adopted earlier, in the construction industry world, the CD used the concept of "exclusive area and supply area (exclusive and public area)" in the contract area in selling apartment houses, and the balcony area was treated as "service area", and the transaction practices that do not include it in contract area or supply area were established to the extent that it is almost impossible to find exceptions. The general public, including the buyers, have recognized it as natural. These practices are in the construction permission or construction project plan approval, and the permission authorities or approval authorities have determined as to whether to grant permission or approval by excluding the size of balcony from the total floor area of balcony. However, in Seoul, the Plaintiff acquired and transferred the apartment of this case, and marked the construction deliberation criteria for the balcony area to be included in the balcony area in the construction industry at least 21 floor constructed in the construction industry after pressing, and the Ministry of Construction and Transportation prepared the same standards around that time, and provided that the total area of the apartment or the aggregate building area excluded from the total area of the apartment or the aggregate building area owned by the general apartment or the aggregate building management law.

"Along with this, in the transaction of apartment houses among the general public, the price is determined based on the exclusive area entered in the public register, and the use of the balcony area was established as the exclusive area on the non-public register, and even in the case of various reports related to taxes, the tax authorities have also taken into account the area of the exclusive area entered in the public register (exclusive area) as the taxation data even in the case where the "exclusive area" is the standard for the imposition of taxes. In addition, in this case, the ○○ Heavy Industries Co., Ltd., which supplied the apartment of this case, constructed the apartment of this case as the exclusive area (excluding the balcony area) with a little size of 165 square meters, which is the standard for the high-class house area under the laws and regulations at the time, and the plaintiff seems to have purchased the apartment of this case by reliance on such practices." On the other hand, the housing or construction-related administrative practices related to the area of the balcony area was established, which does not include the area in the exclusive area of the apartment, and it seems to have been generally accepted the tax practice in the public register.

(5) Determination on the Defendant’s petition on the Crash Crash method

The defendant asserts that the laws governing general apartments and main complex buildings are different, and in particular, the balcony in the main complex building using the construction method in order to lose its structural openness, and it does not fall under the 'No.' under the Building Act, so it should be viewed differently in the case of general apartments and main complex buildings.

In general, the term "curtain" means a construction method that installs a panel made in advance at a factory, etc. when constructing a high-rise building, which is not mainly difficult to install a vision, unlike a load bearing wall that receives the load of the building, only the role of blocking the interior and outside of the building without receiving the load of the building, and the term "curtain construction method" means a construction method that installs a outer wall in the form of attaching a panel made at the factory, etc.

As such, there is a lot of room to see that the apartment house or building-related laws and regulations play a role of blocking the interior and exterior of the building outside of the date of the building. However, in the case of general apartment houses as seen earlier, it is difficult to see that there is a qualitative difference between the external walls and the outer walls of general apartment balcony and the outer wall of the main apartment building, but the structural balcony has not been installed simply by adding to the outer wall. In the case of general apartment, it is difficult to install a reinforced concrete wall, which serves as a pole and bearing wall together with the main body in the balcony side or the middle of balcony, and a reinforced concrete wall is built in a height and size, and it is general to install a window in the remaining open space in order to prevent dust and supporting air flowing into the balcony. In this regard, it is difficult to see that there is a qualitative difference between the outer wall and the main wall of the general apartment balcony and the outer wall of the main apartment building, and if there is a difference between it, it is difficult to treat it in advance from the factory.

Furthermore, in general, apartment buildings are subject to the former Housing Construction Promotion Act, the Housing Act, and the main apartment building are subject to the Building Act, but there is no difference in their residential purpose. The Ministry of Construction and Transportation interpret that the provisions of the Housing Act, not the Building Act, apply mutatis mutandis to the main apartment building in calculating the exclusive use area, etc. In cases of the main apartment building. If the term "Nomb" under the Enforcement Decree of the Building Act is defined as a structure exposed to the outside part of the building, it is generally the same structure as the main body, and it is difficult to include the balcony of apartment installed with the outside wall and windows in the scope of the street building 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, which are installed in the same residential building with a building permit obtained prior to the enforcement of the above construction permit or in the case of the balcony installed in the middle of the main apartment building, it seems that the general apartment building and the main apartment building can not be installed.

Therefore, in the case of the latter by distinguishing a general apartment and a main apartment building from a main apartment building, in particular, a main apartment building by the method of construction in the middle pressing, the taxation of the balcony area by including the floor area in the exclusive area is against the national tax administration practices accepted by the taxpayers in general, and it is illegal.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.