National High Court Decision 2007west1918 (Law No. 18, 2007.09)

Whether the area for exclusive use by the balcony area of the main complex apartment constructed by the construction method is included in the balcony area.

The disposition to exclude the reduction or exemption of capital gains tax on the acquisition of newly-built house by determining the balcony area of the main complex apartment constructed by the construction method as a high-class house by including it in the exclusive area and determining it as a high-class house.

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

1. The defendant's rejection disposition against the plaintiff on February 23, 2007 is revoked. 2. The costs of lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Circumstances of the disposition;

가. 원고는 2002. 1. 9. □□업 주식회사로부터 ○○ ○○구 ○○동 467-17, 467-32 지상 ■■아파트 이(E)동 4501(등기부 등 공부상 전유부분 면적은 160.17㎡이고, 발코니 면적은 25.42㎡이며, 이하 '이 사건 아파트'라 한다)를 667,000,000원에 분양받는 계약을 체결한 후 이 사건 아파트가 완공되자 2003. 4. 24 그 명의로 소유권이전등기를 마친 상태에서 2006. 9. 29. AA구, 허BB에게 이 사건 아파트를 22억 원에 양도하고, 2006. 11. 30. 양도소득세 304,220,360원을 예정 신고 ・ 납부하였다

B. On December 19, 2006, the Plaintiff filed a request for correction of the transfer income tax on the ground that the apartment of this case is subject to the application of special taxation for the acquisition of new livestock houses as stipulated under Article 99-3 of the Restriction of Special Taxation Act, and the Defendant filed a request for correction of the transfer income tax on February 23, 2007 on the ground that the apartment of this case is constructed by the so-called "curtainc" method. In such a case, the balcony area is included in the exclusive area, and if it is included in it, the exclusive area of the apartment of this case constitutes a high-class house as stipulated under the proviso of Article 99-3 (1) of the Restriction of Special Taxation Act, and thus the transfer income tax cannot be reduced or exempted.

[Basis] Evidence Nos. 1 and 2, Evidence Nos. 3-1 through 6, Evidence No. 4, Evidence Nos. 5-1 and 5-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's principal

In the case of balconys of apartment buildings constructed by the public construction method in order to be excluded from the exclusive use area, and in this case, the exclusive use area of the apartment of this case is not more than 160.17m2, which is the standard for high-class houses, and thus, the exclusive use area of the apartment of this case is not more than 165m2, which is the standard for high-class houses. Thus, the disposition of this case which rejected the Plaintiff’s request for correction of capital gains tax on the ground that the apartment of this case constitutes a high-class house with an exclusive use

(b) Related statutes;

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

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. 1/6781 of Dec. 18, 2002), Article 156 subparag. 2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1751 of Oct. 1, 2002), a resident concludes a sales contract for a house acquired by paying a down payment from a housing developer during the new house acquisition period (amended by Act No. 6762 of May 23, 2001) and Article 29(1) of the Addenda of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002). 5).

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 where the area for exclusive use in the public record includes 25.42 square meters in balcony area, the area for exclusive use in the public record can meet the high-class housing standards. As such, the issue of the instant apartment is whether the area for the balcony area should be included in the area for exclusive use in determining whether it falls under 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 17 (1) and (2) of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 18146 of Oct. 29, 2003) introduced the concept of "exclusive area" in Article 17 (1) and (2) of the Enforcement Rule of the same Act (amended by Presidential Decree No. 382 of Dec. 15, 2003), and introduced the concept of "exclusive area" as the inside line of the outer wall in cases of multi-family housing, the exclusive area shall be calculated based on the inside line of the outer wall, but the area of common area shall be excluded, while the multi-family housing with an area of 85 square meters or less is classified as national housing.

Furthermore, Article 89 subparagraph 3 of the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), Article 156 subparagraph 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 on one house for one household under Article 92-2 (2) 1-2 of the Enforcement Decree of the Corporate Tax Act, the special exemption from the transfer income tax on the transfer income under Article 92-2 (2) 1-2 of the Enforcement Decree of the Corporate Tax Act, the exemption from the pride of the house under Article 112 (1) 1 of the Enforcement Decree of the Income Tax Act, the exemption from the three houses for one household under Article 167-3 (1) 2 (c) of the Enforcement Decree of the Restriction of Special Taxation Act, the exclusion from the inclusion of the total real estate holding tax on the basis of the concept of the "national housing Act" 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 a part thereof, which is surrounded by the center line of walls, columns, or other similar partitions, as "floor area"; the floor area of a building's strip and other similar things is defined as "floor area"; regardless of whether railing, etc. are installed, the floor area of the building is 105 meters (referring to the area from the center line of the outer wall to the edge of the street, etc.) multiplied by the length abutting on the highest outer wall abutting on the street, etc. by 105 meters from the length abutting on the highest outer wall abutting on the street, etc. (where a simple strip is installed at least 15 percent of the area of the street rail, etc. outside the wall of the main lighting direction, regardless of whether columns or bearing walls are installed, the area of exclusive ownership under Article 25(2)3 and 4 of the Act is defined as part of exclusive ownership.

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

In multi-family housing, the concept of ‘balconc or balcony' (as seen below, the Enforcement Decree of the Building Act amended by Presidential Decree No. 19163 on December 2, 2005 introduced the concept of ‘balconc,' and used it in combination with the term of ‘balconcing') has been used for a long time. However, there have been no direct provision in the related Acts and subordinate statutes on ‘balconc,' but it has used the expression of ‘balin,' which appears to have a similar meaning with the floor area specified in Article 119(1)3(c) of the Enforcement Decree of the Building Act. As the Enforcement Decree of the Building Act was amended by Presidential Decree No. 19163 on December 2, 2005, Article 2(1)15 defines ‘balconc, installed in combination with the outer wall for the purpose of prospect, rest, etc. as a buffer space connected with the inside and outside of the building', and in calculating the floor area of the No. 119(13).

In Korea's apartment houses, balconys are generally separated from balconys, living rooms, kitchenss, and bathing rooms (hereinafter referred to as "main balconys") and separated from the front or rear space of apartment houses, and water is installed without heating facilities unlike the main body. The floors of apartment houses are string off with materials such as others so that water can be used, and common storage space is attached to the apartment houses. In Korea, it is more widely known that the first balconys constructed by the Korea-U.S. Foundation in 1958 stick out the outer wall to the outer wall, and it is more difficult to open the apartment house with the outer wall because of these structural characteristics. Since these apartment houses are used as a representative apartment, it is more desirable to open the apartment house in the construction or distribution of the apartment house, it is more suitable to open the apartment house in accordance with the construction or distribution of the apartment house.

(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 above evidence and evidence evidence evidence evidence Nos. 6 above, in the construction industry, the apartment house is sold in lots, and the area of balcony is treated as "service area" and it is so established that the transactional practice that does not include it in contract area or supply area is little exceptions. The general public including buyers have recognized it as natural. ② These practices are also in the building permission or the approval of the housing construction project plan, and the permission authorities or approval authorities have determined whether to permit or approve the balcony after excluding the total floor area of the balcony. ③ However, in 00 city, the plaintiff acquired the apartment of this case (as of November 2003, the building deliberation committee included the balcony in the floor area of the main apartment building, and the building area of the aggregate building or the aggregate building is excluded from the total floor area of the aggregate building, and the building area of the aggregate building or the aggregate building area of the aggregate building is excluded from the total floor area of the aggregate building, and the building or the aggregate building area of the aggregate building is excluded from the total floor area of the aggregate building.

Accordingly, in trading multi-family housing among the general public, it is recognized that the price is determined mainly based on the area for exclusive use on the public register, and as to the balcony area, various reports related to taxes, practices have been established based on the area for exclusive use on the public register except the balcony area, and even in the case where the tax authorities impose taxes, the ‘exclusive area' has been used as taxation data for the area (exclusive area) of the portion for exclusive use on the public register. In addition, in this case, in trust of these practices, the △ Business Co., Ltd. that supplied the apartment of this case constructed the apartment of this case as the exclusive use area (excluding the balcony area) with a little size of 165 square meters, which is the standard for the area for high-class housing (excluding the balcony area) under the statutes at the time, and the plaintiff also appears to purchase the apartment of this case

Considering the circumstances, the administrative practices related to housing and construction, which do not include the balcony area in the area for exclusive use by multi-family housing, have been established in the tax administration, and the practical practices that accept the area for exclusive use by the public account as it is have been established in the tax administration, and such practices have been generally accepted by the taxpayers.

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

In general, the term "curtain" means a non-proof partition wall that only plays the role of blocking the interior and outside of a building without receiving the load of the building, unlike the load bearing wall that receives the load of the building, and the term "curtain construction method" means a construction method that installs the outer wall by attaching a panel produced at a factory, etc. when constructing a high-rise building that is mainly difficult to install a rain system.

As such, there is a lot of room to view that the apartment house or building-related laws and regulations are not simply installed on the outer wall in case of a general apartment as seen earlier, it is not installed on the outer wall even before several hundreds of the apartment building except for the apartment of the early window, but rather installed on the outer wall in the form of a reinforced concrete structure in the form of columns and bearing walls together with the main body, and on the other hand, installed a reinforced concrete wall in a height and size. Furthermore, it is generalized to install a window in the remaining open space to block dust and supporting air flowing into the balcony. In this regard, it is difficult to view that there is a qualitative difference between the external wall of the general apartment balcony and the outer wall of the main apartment building, and if it is difficult to view that there is a qualitative difference between the outer wall of the apartment balcony and the outer wall of the main building, it is difficult to install it on the ground that there is a technical difference between the installation of the building and the outer wall of the building in the form of a building in advance.

Furthermore, in general, apartment buildings are subject to the former Housing Construction Promotion Act, the current Housing Construction Promotion 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 should apply mutatis mutandis to the main apartment building not to the method of calculating exclusive use area, etc. In the case 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 of the building, it is generally the same as the main body, and it is difficult to include the balcony of the apartment installed with the outer wall and windows in the class of the building under the Building Act. Moreover, Articles 2 and 3 of the Addenda of the Enforcement Decree of the Building Act as amended by Presidential Decree No. 19163, Dec. 2, 2005 are likely to be used as a living room, bedroom, storage, etc. before the enforcement of the above Enforcement Decree, and it seems that the general apartment is not installed in the apartment building or the apartment wall installed in front of the construction.

Therefore, it is not only imposed differently from the area for exclusive use on the public register by including it in the area for exclusive use depending on whether to remodel the balcony area of multi-family housing, but also, in the case of the latter by distinguishing the general apartment and the main complex building by the public law, in particular, the balcony area is included in the area for exclusive use, and it is in violation of the practices of national tax administration accepted by the taxpayers and illegal.

3. Conclusion

Therefore, although the apartment of this case is not a high-class house, and the transfer income tax related to its transfer should be exempted in full, it is reasonable to revoke the disposition of this case which the defendant rejected the plaintiff's request for correction of transfer income tax on the contrary, and therefore, the plaintiff's claim is accepted for reasons.