In a case where Party A filed a claim for rectification on the ground that an officetel was subject to reduction or exemption from acquisition tax under Article 33(1) of the former Restriction of Special Local Taxation Act after filing a return on and payment of acquisition tax, etc. by constructing a building for the purpose of an officetel, etc., but the competent administrative agency rejected the disposition, the case holding that the said disposition is lawful on the ground that the officetel, which is a business facility, is not a multi-unit house

In a case where Party A filed an application for rectification on the ground that an officetel constitutes subject to reduction or exemption from acquisition tax under Article 33(1) of the former Restriction of Special Local Taxation Act (amended by Act No. 11618, Jan. 1, 2013; hereinafter the same) after filing a return and payment of acquisition tax, but the competent administrative agency rejected the application, the case holding that the instant disposition is clearly distinguishable from that of an officetel under Article 2(1)3 of the former Restriction of Special Local Taxation Act, Article 2 subparag. 2 of the former Housing Act (amended by Act No. 11061, Sept. 16, 201); Article 2(1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 24569, May 31, 2013); Article 3 of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 23566, Dec. 8, 2011).

Articles 2(1)3 and 33(1) of the former Restriction of Special Local Taxation Act (Amended by Act No. 11618, Jan. 1, 2013); Article 2 subparag. 2 of the former Housing Act (Amended by Act No. 11061, Sep. 16, 201); Article 2(1) of the former Enforcement Decree of the Housing Act (Amended by Presidential Decree No. 24569, May 31, 201); Article 3-4 [Attachment Table 1] of the former Enforcement Decree of the Building Act (Amended by Presidential Decree No. 2356, Dec. 8, 201); Article 13 of the Enforcement Decree of the Local Tax Act (Amended by Act No. 2356, Dec. 1, 201); Article 17 of the Framework Act on Local Taxes; Article 13 of the Enforcement Decree

Plaintiff

Head of Gangseo-gu Busan Metropolitan City

Busan District Court Decision 2013Guhap971 Decided September 5, 2013

November 29, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's rejection disposition against the plaintiff on October 16, 2012 against the plaintiff shall be revoked.

1. Details of the disposition;

A. On September 9, 2011, the Plaintiff newly built the 1st basement and the 9nd floor above 2,074 square meters of the total floor area on one parcel, other than the Busan Seo-gu (hereinafter omitted), and obtained approval for use from the Defendant.

B. On the aggregate building register of the instant building, the purpose of each floor is ① “parking lot”, “legal room”, “carbon room”, ② the ground-based first floor is “Class I neighborhood living facilities (retailing stores),” “rovisium”, ③ the second and fourth floors above the ground are respective “urban residential housing-studio type”, and ④ the fifth and nine floors above the ground are “business facilities (officetel)”.

C. On November 7, 2011, the Plaintiff was exempted from acquisition tax pursuant to the provision on reduction or exemption for expansion of housing supply under Article 33(1) of the former Restriction of Special Local Taxation Act (Amended by Act No. 11618, Jan. 1, 2013; hereinafter the same) with respect to the 23,837,030,030, the special rural development tax for rural education tax, 1,702,640, the local education tax, 1,362, and 110, respectively.

D. After that, on August 28, 2012, the Plaintiff filed an application for rectification to the Defendant for refund on the remainder of the acquisition tax paid, excluding the part of the first floor neighborhood living facilities on the ground, on the ground that the instant officetel is leased to a house as the studio in the instant case, and thus constitutes reduction of acquisition tax pursuant to Article 33(1) of the former Restriction of Special Local Taxation Act. However, on October 16, 2012, the Defendant rendered a disposition rejecting the said application for rectification (hereinafter “instant disposition”).

E. On October 30, 2012, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal, but was dismissed on December 24, 2012.

[Reasons for Recognition] Facts without dispute, entry of Eul evidence 1 to 5 (if there are provisional numbers, including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Although the instant officetel’s purpose is indicated as “business facilities (officetel)” on the aggregate building registry, it is identical to the instant studio and its structure and size, and is equipped with a housing facility identical to the instant studio, such as a kitchen, toilet, bathing room, and washing machine, and is actually leased to a house.

2) As above, the instant officetel is an urban-type residential house, which is virtually subject to exemption from acquisition tax under Article 33(1) of the former Restriction of Special Local Taxation Act in accordance with the principle of substantial taxation under Article 17 of the Framework Act on Local Taxes and the principle of substantial taxation under Article 13 of the Enforcement Decree of the Local Tax Act.

3) Therefore, the instant disposition rejecting the refund of acquisition tax already paid by the Plaintiff is unlawful.

B. Relevant statutes

[Attachment] The entry in the relevant statutes is as follows.

C. Determination

1) Relevant legal principles

Article 33(1) of the former Restriction of Special Local Taxation Act provides that “Where a housing construction business operator prescribed by Presidential Decree constructs at least five units of multi-family housing with an exclusive area of 60 square meters or less constructed for the purpose of selling multi-family housing, and such multi-family housing is converted for rental due to reasons, such as unsold housing, etc., acquisition tax shall be exempted until December 31, 2012.”

However, in light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws is to be interpreted as the text of the law, barring any special circumstance, and it is not allowed to expand or analogically interpret with favor to taxpayers without reasonable grounds. In particular, it accords with the principle of fair taxation to strictly interpret the provisions that can be seen as clearly preferential provisions among the requirements for tax exemption or exemption (see Supreme Court Decision 2007Du21242, Feb. 14, 2008).

2) Whether the instant officetel constitutes multi-family housing

A) As to whether the instant officetel returned to the instant case and whether it falls under the “multi-family housing” as prescribed by Article 33(1) of the former Restriction of Special Local Taxation Act, Article 33(1) of the former Restriction of Special Local Taxation Act provides for special provisions as a restrictive provision to encourage the supply of multi-family housing. Therefore, in light of the legal principles as seen earlier, the requirements for reduction or exemption should be strictly interpreted.

Article 2(1)3 of the former Restriction of Special Local Taxation Act provides that “multi-family housing means multi-family housing under Article 2 subparag. 2 of the Housing Act, excluding dormitories.” According to Article 2 subparag. 2 of the former Housing Act (amended by Act No. 11061, Sept. 16, 201); “multi-family housing” means housing with a structure in which each household that jointly uses all or some of the walls, corridors, stairs, and other facilities, etc. of a building, can carry on an independent residential life within one building, and the type and scope thereof shall be prescribed by Presidential Decree.

In addition, according to Article 2(1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 24569, May 31, 2013), the types and scope of multi-family housing under Article 2(2) of the Housing Act shall be governed by the provisions of subparagraph 2(a) through (c) of the Enforcement Decree of the Building Act, and the attached Table 1 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 23356, Dec. 8, 201; hereinafter the same shall apply) provides that apartment, multi-family housing, and multi-household housing constitute multi-family housing and are included in the studio-type housing under Article 3(1) of the Enforcement Decree of the Housing Act.

However, according to subparagraph 14 (b) of attached Table 1 of the former Enforcement Decree of the Building Act, officetels is one of the general business facilities, and it is stipulated that officetels is equipped with the standards as publicly notified by the Minister of Land, Transport and Maritime Affairs among buildings that allow accommodation in a part of the subdivision in sale or lease.

In light of the above provisions, the studio-type housing and the officetels, which is a general business facility, are clearly distinguishable.

B) Meanwhile, Article 17 of the Framework Act on Local Taxes provides that “The provisions concerning the tax base in the Local Tax Act shall apply according to the substance, regardless of the name or form of property,” and Article 13 of the Enforcement Decree of the Local Tax Act provides that “The real estate shall be imposed according to the actual status at the time of acquisition of the pertinent property, except as otherwise provided in special provisions, but where the actual status at the time of acquisition is unclear, it shall be imposed according to the registration status in the public book.”

However, since Article 33(1) of the former Restriction of Special Local Taxation Act provides special provisions for reduction of acquisition tax, multi-family housing subject to reduction of acquisition tax shall be deemed to mean multi-family housing only when the use of the building is multi-family housing at the time of construction

In light of the purport of the argument in Gap evidence No. 4, in order to avoid various regulations imposed on multi-family housing with not less than a certain number of households, the plaintiff obtained a building permit by dividing the use of the building in this case into studio and officetel and also entered the same in the aggregate building ledger. According to the construction standards of officetels (No. 2010-351, Jun. 9, 2010) publicly notified by the Ministry of Land, Transport and Maritime Affairs (No. 2010-351, Jun. 9, 2010), officetels has a different construction standards from

Therefore, if the Plaintiff obtained approval for use of the instant building on September 9, 201, the instant officetel appears to have been in fact an officetel. Even if it is not clear whether the instant officetel is an officetel because it is similar to multi-family housing, it should be viewed as an officetel according to the registration status on the aggregate building ledger under Article 13 of the Enforcement Decree of the Local Tax Act.

C) Comprehensively taking into account the above circumstances, the instant disposition is lawful since it does not constitute a multi-family housing (studio-type housing) under Article 33(1) of the former Restriction of Special Local Taxation Act even if the instant officetel, which is a business facility, is actually used for residential purposes after the approval for use was granted.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Choi Han-man (Presiding Judge)