Cho Jae-chul2010 Before 3002 (Law No. 111, 2011)

An officetel similar to a house shall not be exempt from value-added tax for a national housing scale.

In the beginning, a building built of a balcony without obtaining permission for use after being newly constructed in compliance with the standards for the construction of an officetel and completing approval for use, which is similar to a house, does not constitute a national housing exempt from value-added tax, even if the area of a room in the building falls under national housing scale.

Article 106 of the Restriction of Special Taxation Act

2011Guhap3656 Revocation of Disposition of Imposition of Value-Added Tax

Ma XX

The Director of the National Tax Service

September 19, 2012

October 24, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 000 on March 18, 2010 on the second-term value-added tax for the Plaintiff on March 18, 2010, KRW 000 on the business operator’s registration, KRW 00 on the additional tax for unfaithful payment, and KRW 00 on the additional tax for unfaithful payment shall be revoked.

1. Details of the disposition;

A. On November 2007, the Plaintiff newly constructed one officetel on each ground of the same 1136-1 large 340.5 square meters and the same 1136-1 square meters and 1136-1 square meters and owned by the Plaintiff (hereinafter referred to as “each building of this case”) on each ground of the same 1136-1 square meters and 329.5 square meters and the same 1136-1 square meters and the same 1136-1 square meters and the two buildings are collectively referred to as “each building of this case”).

B. On June 16, 2008, Jung-B, which was transferred to the owner of the building of this case from the Plaintiff, completed the registration of ownership preservation on August 21, 2008 with respect to the above building of this case No. 1, and on the same day, Jung-B, which was transferred to the owner of the building of this case under the name of the owner of the building of this case.

C. After conducting a tax investigation with respect to the Plaintiff, the Defendant: (a) issued an ex officio registration of the Plaintiff on the ground that the Plaintiff did not file a return on the value-added tax for the purchase and sale of each of the instant buildings, which had been newly constructed by the Plaintiff; and (b) issued a disposition of imposition of the value-added tax for the second period of March 18, 2010 on the Plaintiff, KRW 000 for the business operator registration; (c) KRW 000 for the non-registration; and (d) for the non-registration additional tax; and (e) KRW 000 for the non-registration additional tax (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 16, 2010, but was dismissed on June 1, 2011.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 2 and 5 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff newly constructed and sold the instant building as a studio for residential use from the beginning of the beginning of the building, and since all of the instant building is a multi-household house with a size not exceeding 85 square meters per household, it constitutes a "national housing subject to the exemption of value-added tax under Article 106 (1) 4 of the Act on Special Cases concerning Taxation Restriction." Nevertheless, the Defendant’s disposition against which value-added tax is imposed on the profits accrued from the Plaintiff’s construction of the instant building

B. Relevant statutes

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

C. Determination

A national housing exempt from value-added tax under Article 106 (1) 4 of the Restriction of Special Taxation Act refers to a national housing that is exempt from value-added tax, in light of its purpose, etc., where it falls under at least a building constructed for a housing purpose by obtaining a building permit lawfully, and where it is remodeled into a housing without obtaining a permit for alteration of use after obtaining a building permit and obtaining approval for use for an officetel, even if its size constitutes a national housing scale, it shall not be deemed a national housing that is exempt from value-added tax under the above provision (see Supreme Court Decision 96Nu8758, Oct. 11, 1996). Meanwhile, Article 206-635 of the Ministry of Construction and Transportation’s notification of the Ministry of Construction and Transportation provides that “the construction of a balcony by each administrative subdivision shall not be installed.”

As to the instant case, the following circumstances, which are acknowledged as comprehensive consideration of the facts acknowledged earlier, Gap evidence Nos. 3, 4 and Eul evidence Nos. 2 through 7 (including each number), and the purport of the entire pleadings at the witnessCC’s testimony, namely, (i) the Plaintiff newly constructed each of the instant buildings in conformity with the standards for the construction of officetels with the permission of an officetel construction; and (ii) the Plaintiff entered into a sales contract on each of the instant buildings with Jung and JungB as an officetel in the state where Jung and JungB are not installed a balcony, and the approval for use of each of the instant buildings was stated as the "officetel in the column for the use of the building ledger of each of the instant buildings and the building content column of the certified copy of the register of the instant buildings; and (iii) the Plaintiff was exempted from the construction of a balcony in accordance with the construction permission standards, without obtaining the permission for use approval after obtaining the approval for each of the instant buildings; and (iv) the construction permission for each of the instant buildings is not subject to the construction permission standards established by the head of the first apartment.

The plaintiff asserts that each of the buildings of this case constitutes a national housing exempt from value-added tax in light of the fact that its actual use is a house and its actual use is a house. However, each of the above decisions is inappropriate to use this case as it is different from this case, and it is inappropriate to use this case in this case, and the balcony illegally installed without legitimate permission for construction permission and use of each of the buildings of this case as an officetel is subject to corrective measures, such as removal, since it is not acceptable for the plaintiff's above assertion.

3. Conclusion

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