Review Transfer 2010-0057 (27 April 2010)

Whether the purpose of an officetel can be viewed as residential

An officetel is confirmed to have been used as a house due to the fact that the lessee has resided in the moving-in report by the tenant, as soon as possible, etc., and thus, it shall be deemed three houses for one household and taxation is justifiable.

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

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of capital gains tax of KRW 37,457,970 for the Plaintiff on December 1, 2009 shall be revoked.

1. Circumstances of dispositions;

A. On July 21, 2008, the Plaintiff transferred ○○○○○○-dong 515-1, 321 square meters of land owned by the Plaintiff (hereinafter referred to as “the instant officetel”) to the entire Do○○-dong, ○○-dong 515-1, 321 square meters of land, and reported and paid KRW 662,305 of capital gains tax on the ground that the Plaintiff is a single housing owner on May 31, 2009.

B. On December 1, 2009, the Defendant determined the instant officetel as a house and imposed an additional amount of KRW 37,457,970 on the Plaintiff on the ground that the Plaintiff constitutes a person who owned three or more houses, not one house for one household, and transferred it to the Plaintiff.

C. The Plaintiff filed a request for review with the Commissioner of the National Tax Service on February 23, 2010, but was dismissed on April 27, 2010.

[Reasons for Recognition] Facts without any dispute, Gap's 1 to 3 evidence, Eul's 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff obtained a building permit with the use of the instant officetel as a business facility, and the area is a small scale and a structure that cannot be seen as a house, and the actual usage is not a house. Nevertheless, the Defendant’s disposition based on a different premise is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

(1)The Plaintiff obtained the construction permit by making the use of the △ Building a business facility (officetel).

(2) At the time of November 18, 2009, 13 persons among the lessees of the instant officetel (102, 202, 203, 205, 301, 302, 303, 306, 401, 402, 403, 501, 502), 402, 502, 502), ○○-gu ○○○-dong, 502.

(3) AA(101), AB(204), and RedCC(306) stated that the instant officetel was used for residential purposes on November 19, 2009 in the letter of answer presented by the Defendant’s employee. In particular, for redCC, it stated that the instant officetel was used for self-making in ○○ because of place of work.

(4) On January 2005, the Plaintiff registered a business owner who is a housing lessor as a duty-free business.

(5) According to the photographs taken by the Defendant, the instant officetels was promptly dried and fireproofized in the benda of the instant officetel.

[Ground of recognition] Evidence Nos. 4, Eul evidence Nos. 3, Eul evidence Nos. 4-1 to 3, Eul evidence Nos. 5 and 6

D. Determination

(1) In a case where the transferor of a house owns another building, whether the other building is “one house for one household” under the former Income Tax Act must be determined by whether it is a house under the term “one house for one household” or “one house for one household” depending on whether it is actually offered for residence, regardless of the purpose in the public record or whether it is permitted to change the structure of the authority’s residence (see, e.g., Supreme Court Decision

(2)In full view of the following circumstances revealed by the above recognition, ① the lessee of the instant officetel was living in the office of move-in, ② the lessee of the instant officetel leased the instant officetel to use it for actual residence, ③ the Plaintiff is also registered as a tax-free entrepreneur including a housing lessor, ④ the instant officetel was used for the external residence of the instant officetel, ④ the instant officetel was actually used for the residence, and the instant officetel was used for the residence as soon as possible. Accordingly, the Defendant’s disposition that reported the instant officetel as a residence is lawful.

3.In conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.