early 2010 Heavy0134 ( November 02, 2010)

The tenant has resided in the move-in report and has not been engaged in the business, so it is used for residential purposes.

The issue of whether a lessee constitutes a lease of a house shall be determined depending on whether the lessee uses the building for permanent residence on the basis of the objective purpose of using the building in question. Therefore, it is reasonable to deem that the lessee of an officetel permanently used for residential purpose, since the lessee completed the moving-in report for resident registration and did not run business in the officetel.

Article 12 (Exemption from Value-Added Tax)

Article 34 (Exemption from Lease of Housing or Land appurtenant to Housing)

2011Revocation of disposition of imposing value-added tax;

XX Kim

The director of the North Incheon National Tax Office

November 10, 201

December 22, 2011

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of value-added tax of KRW 18,206,870 on December 4, 2009 against the Plaintiff on December 4, 2009 shall be revoked.

1. Details of the disposition;

가. 원고는 2004. 1. 2. 인천 계양구 작전동 000-12에 있는 XX카이저팰리스 101동 703호(이하 '이 사건 오피스텔'이라 한다)을 분양받고, 업종을 부동산임대업으로 하여 사업자등록을 한 사람으로, 2003년 제2기부터 2006년 제1기까지 이 사건 오피스텔 분양가액의 10%에 해당하는 금액을 매입세액으로 신고하여 부가가치세 14,920,000원을 환급받았다.

B. On March 12, 2008, the Defendant: (a) deemed that the lessee of the instant officetel used the instant officetel for residential purpose; and (b) imposed KRW 18,206,870 on the Plaintiff on March 12, 2008 along with the amount of penalty tax refunded to the Plaintiff; (c) the Plaintiff filed a petition for adjudication on this issue; and (d) the Tax Tribunal revoked the Defendant’s disposition imposing value-added tax on the Plaintiff on the ground that the Defendant did not review the Plaintiff’s request for pre-assessment review (fax). Accordingly, on December 14, 2009, the Defendant again imposed value-added tax of KRW 18,206,870 on the Plaintiff (hereinafter “instant disposition”).

[Reasons for Recognition] Uncontentious Facts, Gap evidence 4, Eul evidence 1 and 5, and the purport of the whole pleadings

2. Whether the instant disposition is minor;

A. The plaintiff's assertion

Since it is apparent that the instant officetel is not a house because it is a general business facility under the building management ledger and the Building Act, the rent of the instant officetel is not a tax exemption subject to Article 12 of the Value-Added Tax Act and Article 34(1) of the Enforcement Decree of the same Act. Moreover, the Plaintiff entered into a lease contract with a lessee on the condition that the instant officetel is used as a business facility and does not make a moving-in report for resident registration. The lessee unilaterally breached the contractual obligations under the above contract and unilaterally used the instant officetel as a residential purpose. Even if the circumstances arise, imposing tax liability on the Plaintiff contradicts the principle of no taxation without the law. Moreover, the Defendant rendered the instant disposition without providing the Plaintiff with legitimate opportunity to make a statement based on the lessee’s false statement inconsistent with objective evidence materials. Accordingly, the instant disposition ought to be revoked in an unlawful manner.

B. Relevant statutes

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

C. Determination

(1) Article 17(1)1 of the Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010; hereinafter the same) provides that “The amount of taxes on the import of goods used or to be used for one’s own business shall be deducted from the input tax amount.” Article 17(2) of the same Act provides that when a lessee uses or consumes goods or services exempt from the value-added tax, etc. for the purpose of supplying goods or services exempt from the value-added tax, the relevant entrepreneur shall make a return and payment again by calculating the tax amount to be paid or the tax amount to be refunded. Furthermore, Article 12(1)11 of the same Act provides that the value-added tax shall be exempted for the supply of housing and its appurtenant land. Accordingly, where a rental business operator purchases real estate to be used for one’s own business and uses such real estate for housing lease subject to the exemption of the value-added tax, the rental business operator is obliged to make a return and payment again by calculating the previously refunded tax amount. On the other hand, whether the lessee actually used the relevant building should be determined based on 17.

(2) We examine whether the instant officetel was actually used for permanent residence. In full view of the aforementioned evidence and evidence Nos. 2, 3-1, 2, 4, 5, and 6-1, 3-2, 4, and 6-6, and the overall purport of the pleadings in the testimony of KimCC by the witness KimCC, it is reasonable to deem that the instant officetel was leased from the Plaintiff during the contract period from June 3, 2006 to June 15, 2007, the lease deposit amount was KRW 10 million, and monthly rent was leased at the instant officetel and resided in the instant officetel. Accordingly, it is reasonable to deem that the Plaintiff did not directly use the instant officetel as the Plaintiff’s house in the process of conducting the instant field investigation, as alleged in the ground that the instant disposition was not a legitimate one by the Plaintiff.

3. Conclusion

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