Whether a house shall be deemed national housing in cases where a seller of a house built with the exclusive use area of 85 square meters or less with the permission of national housing and the seller of a house sold in lots uses it as a weekend house and does not reside at all times (affirmative)

Where a housing constructor constructs and sells a house with an area of 85 square meters or less in a hot spring area with the permission of national housing, the housing shall constitute a national housing under the Housing Construction Promotion Act even if the seller uses it as a weekend house and does not reside at all times.

Article 3 of the Housing Construction Promotion Act, Article 30 of the Enforcement Decree of the same Act, Article 62 of the former Regulation on Tax Reduction and Exemption Act

Samcheon Construction Company

Director of the tax office

The Defendant’s disposition of imposition of KRW 7,872,010, corporate tax for the year 1989 against the Plaintiff as of August 16, 1991, KRW 18,340,620, corporate tax for the year 1990, and KRW 3,144,100, value-added tax for the year 1990, KRW 15,178,420, and value-added tax for the year 190, and KRW 13,92,860 for the second year.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Disposition by the defendant

A registered housing constructor who purchased the land of 1,357 1,38-38-1,357, Macheon-gu, Chungcheongnam-gu, Chungcheongnam-do, in 1989. On June 17, 1990, the Plaintiff newly constructed a multi-household housing with an exclusive residential area of 85,00 square meters or less per household on the ground of national housing scale, and completed a completion inspection and sold it to 36 households. As to the fact that the Defendant: (a) deemed the above housing as a non-resident housing which is a non-resident, and was exempted from the transfer of the above land on August 16, 1991 pursuant to Article 62 of the Regulation of Tax Reduction and Exemption Act; (b) deemed that it is not a national housing; (c) the transfer income tax to which the transferor of the above land was exempt pursuant to Article 59-2 (1) of the Corporate Tax Act and Article 124-3 (5) of the Enforcement Decree of the Corporate Tax Act; and (d) the imposition of 1970-1, 197, a corporation’s imposed penalty for new imposition.

2. Determination on the amount of corporate tax imposed in the year 1989

According to Article 62 (1) and (2) of the former Regulation on Tax Reduction and Exemption (amended by Act No. 4128 of Jun. 16, 1989), if a national transfers land as a site for construction of a house below the scale of national housing under the Housing Construction Promotion Act and constructs a national housing within the period fixed by the President, he shall transfer the land to a national, but the transfer income tax or special surtax on income accruing from the transfer of the land shall be collected by adding the tax amount to the corporate tax under Article 3 (1) of the Housing Construction Promotion Act and Article 30 (1) of the Enforcement Decree of the same Act provides that if the actual user fails to construct a national housing on the land, it shall be limited to the size of national housing (in the case of an apartment house, the area of residence for each household shall be less than 85 square meters) as to the national housing (in the case of an apartment house) and that the defendant does not use the house as a site for construction of national housing under Article 3 (2) of the same Act, even if it does not have any provision for the plaintiff's residential purpose.

3. Judgment on the additional levy amount of corporate tax in 1990

According to Article 59-2(1) of the former Corporate Tax Act (amended by Act No. 4282 of Dec. 31, 1990), and Article 124(5) of the Enforcement Decree of the same Act, the tax base of special surtax is income generated from the transfer of land, buildings, etc. prescribed by the Presidential Decree, and where a house is newly constructed and sold, the land within the area calculated by multiplying the area of the house and the land appurtenant to the house by the rate (5 times the land and other land 10 times the size of the building within the urban planning zone) under the following subparagraphs is excluded from the above land and the building. The house is regardless of whether it is a national housing [the condominium is a house, and if a corporation sells a condominium without falling under a house, it is not binding as an administrative rule, and it is not recognized that the building area of the above house was newly constructed and sold as a multi-household house under the premise that the building area of the house in this case was 200,000 square meters, and it cannot be recognized that the above building area was changed to 14.7.

4. Determination on the imposition of value-added tax for the year 1990

According to Article 74(1)1 of the Regulation of Tax Reduction and Exemption Act, national housing and construction services of the housing concerned, which are prescribed by the Presidential Decree, shall be exempted from value-added tax. In this context, national housing also means national housing under the Housing Construction Promotion Act as recognized above, and the housing newly built and supplied by the plaintiff constitutes below the scale of national housing under the above Act. [In addition, the provisions of the above general provisions are limited to those of Article 62(1) of the above Act, and it does not include buildings which are not used for regular residence such as villa and weekend farm house, etc. for a house exempt from value-added tax, and buildings which are not used for regular residence such as villa and weekend farm house, etc. (tax 1265,1-2394, October 23, 1979), under the premise that the plaintiff did not supply national housing, it is unlawful that the defendant imposed value-added tax for the first and second period of 190

5. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation is legitimate since the disposition of the above corporate tax and value-added tax against the plaintiff was unlawful, and it is so decided as per Disposition.

Judges Kim Young-il (Presiding Judge) Kim Tae-dae