Whether it is subject to value-added tax when selling a house (not exceeding 85§³) after obtaining approval for use as an officetel.

National housing exempt from value-added tax under Article 106 (1) 4 of the Restriction of Special Taxation Act shall be limited to the case where the construction permit has been lawfully granted for the purpose of housing, but it does not fall under the case

Article 106 of the Restriction of Special Taxation Act

Incheon District Court 2018Guhap52680 Such revocation, etc. of the disposition imposing value-added tax

Whether an officetel is eligible for exemption from value-added tax under this exemption

The provisions of the Housing Act can be considered, and the Housing Act distinguish between housing and quasi-housing.

The selel is defined as one of quasi-housing, and the use of the building is also a detached house or joint owner.

Division into home, business facilities, etc. and classification of officetels as business facilities, 5 Housing Act

As amended by Act No. 10237 of April 5, 2010, officetels is operated by introducing the concept of quasi-housing.

A special law on private rental housing is included in quasi-housing, and an officetel is included in private rental housing.

Although it is included, it is the purpose of the instant exemption provision that sets the object of value-added tax exemption.

In full view of the fact that the purpose of this case is different, “house” under the exemption provision of this case is supplied.

Only a building constructed as at the time of obtaining a building permit lawfully for a purpose of housing;

any building constructed with a building permit for the purpose of a business facility (office)

Nor can it be deemed to be a case (see Supreme Court Decision 96Nu8758 delivered on October 11, 1996).

Therefore, the supply of the instant officetels is exempt from value added tax as stipulated in the instant exemption provisions.

The term "supply of housing below the scale of national housing under the Housing Act" does not constitute "supply of housing below the scale of national housing".

2) Whether the imposition of value-added tax is legitimate

Under the tax law, the taxpayer is to facilitate the exercise of the taxation right and the realization of the taxation claim.

(1) Where any obligation, such as reporting and tax payment, prescribed by law, is violated without justifiable grounds, individual tax-related Acts;

as administrative sanctions imposed under this subsection, the taxpayer's intentional or negligent act shall not be considered.

land, error, etc. of a statute shall not constitute a justifiable ground that does not constitute a violation of the duty.

Supreme Court Decision 2002Du10780 Decided June 24, 2004; Supreme Court Decision 2002Du10780 Decided October 27, 2016

2016Du44391, supra.

The supply of the instant officetel is subject to value-added tax exemption stipulated in the provisions of the exemption of this case.

It is difficult to see that there was a variety of opinions in the interpretation of the tax law, and the above substitute law.

It appears that the judgment was made in the judgment, etc. of 96Nu8758 delivered on October 11, 1996.

Considering that there was part of the decision of the Tax Tribunal consistent with the plaintiffs' assertion

sole basis is the duty to report and pay value-added tax on the supply of the instant officetel to the Plaintiffs.

It is difficult to deem that there is a justifiable reason that is not attributable to negligence.

3) Whether the disposition of value-added tax of this case is legitimate

The Plaintiffs’ instant officetel supply is not subject to value added tax exemption, and the Plaintiffs’ supply is not subject to value added tax exemption.

If the failure to perform the duty to report and pay the value-added tax is deemed to have no justifiable reason;

The imposition of value-added tax in this case is lawful.

3. Whether the disposition imposing global income tax of this case is lawful

A. The plaintiffs' assertion

1) Plaintiffs Kim*, Park** is registered as a housing construction and sales business on June 27, 2013 and officetels.

(2) In the process of removal of an existing building in 2013 after commencement of the sales business by newly constructing and selling the existing building

Sales and import of scrap metal 2,170,000 won, and sales and import of scrap scrap generated in the course of new construction of a building

Total amount of 6,270,000 won, total of 3,000,000 won for sales contracts under 902 among new buildings, etc. 6,270,000 won

As such, the simple expense rate under Article 143 (4) 2 (b) of the former Enforcement Decree of the Income Tax Act was earned.

“The amount of income in the immediately preceding taxable period shall be KRW 36,000,000, which is the standard amount of income in the construction business.

As to business income belonging to plaintiffs Kim*, Park**'s business income belonging to 2014

the simple expense rate shall apply.

Kim Jong-soo3

**, quantity** has registered housing construction and sales business on March 10, 2014 and officetels.

Iron arising in the course of removal of an existing building in 2014 after commencement of a business for new construction and sale;

Sales revenue of KRW 1,250,000, sales revenue of steel scrap generated in the course of constructing a new building 750,000

Article 143 (4) 2 of the former Enforcement Decree of the Income Tax Act because he/she obtained a total of KRW 2,000,000,000.

The amount of income in the immediately preceding taxable period is subject to the application of simple expense rate under item (b) of the construction business.

Associate income amount of less than 36,00,000 won constitutes 'business' and plaintiff Kim*, quantity*

With respect to business income belonging to year 2015, simple expense rate should apply.

Therefore, plaintiffs Kim*, gambling*'s business income for the year 2014 and plaintiffs Kim*, quantity*

With respect to business income accrued in 2015, the amount obtained by deducting standard expense rate from the amount of income;

The imposition of global income tax in this case, which was made by estimated investigation of income amount, is unlawful.

of this chapter.

2) Even if the standard expense rate should apply to the Plaintiffs’ business income, the cost

They may, if any, sell or import by-products, such as scrap metal, arising in connection with their business,

If the revenue amount is less than 36,000,000 won because of the commencement of the business, the next taxable period;

According to the contents of the Internet counseling by the National Tax Service that simple expense rates shall apply to the calculation of income amount among them.

Considering that income tax return and payment have been made by applying simple expense rates, the instant comprehensive information

The penalty tax imposed is illegal.

B. Determination

1) Whether it is legitimate to apply standard expense rate in the determination of estimated income amount of the Plaintiffs

(1) The proviso to Article 80 (3) of the former Income Tax Act (Amended by Act No. 15225, Dec. 19, 2017)

section 143(3) and (4), and Article 208(5)2(b), etc. of the former Enforcement Decree of the Income Tax Act

- The tax base and amount of tax are determined or corrected due to omissions or errors in the details of income tax returns.

in the case of calculating the amount of income due to the absence of books or documentary evidence, etc.

In cases of determining or correcting income, the amount obtained by multiplying income by standard expense rate;

The amount of income shall be determined or corrected by means of deduction, but for persons subject to simple expense rate:

income by deducting the amount of income from the amount of income multiplied by simple expense

Determination or correction, and a person subject to the application of simple expense rate, means a new business commencement in the relevant taxable period;

A business operator whose revenue amount in the relevant taxable period is less than 150,000,000 won in the case of construction business;

A business operator or a business whose revenue amount in the immediately preceding taxable period is less than 36,000,000 won in case of construction business;

(2) The plaintiffs' project is a business that newly constructs and sells a building.

In nature, it is included in real estate trading business (Supreme Court Decision 2008Du21768 Decided July 22, 2010).

[See] The Income Tax Act, on the basis of income source theory, is subject to taxation in accordance with the method of listing.

Since the income accrued from the plaintiffs' business is separately identified, the Officetel of this case

It is reasonable to see that the income from the sale after the new construction is the income from the sale of the plaintiff Kim*, Park*

Revenues and plaintiffs Kim*, quantity** in quantity* in the year 2013 from scrap metal sales, etc.

Income from the construction or sale of the instant officetels, etc. shall be applicable to the income from such construction or sale.

It is difficult to see that they are (Plaintiff Kim*, Park* a new building that is claimed as imports in 2013.

Of the parcelling-out contracts referred to in 902, 3,000,000 won shall be newly constructed and sold in 2014 and its unit price

In light of the fact that the gold is paid in full and that the registration of ownership transfer has been made to the buyer around May 2014.

In full view of the following facts: (a) the Plaintiffs cannot be deemed to have accrued to the year 2013, as alleged by the Plaintiffs.

'Before the person subject to simple expense rate under Article 143 (4) 2 (b) of the Enforcement Decree of the Income Tax Act'

Business operator whose revenue in the taxable period is less than 36,000,000 won which is the standard revenue amount in the construction business.

It shall not be deemed to fall under the category.

Therefore, income by deducting the standard expense rate from the amount of income of the plaintiffs.

The disposition of imposition of global income tax of this case, which was made by estimated investigation, is legitimate.

2) Whether the imposition of global income tax is legitimate

The contents of Internet counseling by the National Tax Service are merely subject to trust by the Defendants to the Plaintiffs.

It is difficult to see that the name of public opinion was given, and even in accordance with the plaintiffs' assertion, the plaintiffs are the plaintiffs.

Income tax return and payment by applying simple expense rates only on the basis of the Internet counseling details of the National Tax Service

Considering that there was a new income tax for the business of building construction and sales to the Plaintiffs.

It is difficult to deem that there is a justifiable reason that it is not likely to cause a failure to neglect the duty of dismissal and payment.

3) Whether the instant disposition of global income tax was lawful

The amount calculated by deducting standard expense rate from the income amount of the business of newly constructing and selling the plaintiffs' buildings

by means of estimating the amount of income, and the Plaintiffs’ obligation to report and pay their income tax

section of the global income tax of this case, taking into account that there is no reasonable ground for failure to implement

The disposition is lawful.

4. Conclusion

The plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

O Head of the tax office other than 1

November 8, 2018

November 29, 2018

1. The plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Each disposition of imposition in the attached Form No. 1 which the defendant of the Gu office issued against the plaintiffs shall be revoked.

1. Details of the disposition;

A. New construction and sale of officetels by the plaintiffs

1) Plaintiffs Kim*, Park*, Park* was registered as a housing construction and sales business on June 27, 2013* Home** (business registration number: 122-92-*****) and on April 2014, Incheon****** Dong** Dong 504-4 large 37.1 square meter, 504-5 large 214 square meter above the same 504-5 large 214 square meter*** home* under the name of "** home* an aggregate building (multi-unit housing 48 households, officetels 24) on the ground floor and 14th above the value-added tax in the first taxable period of value-added tax in 2014.

2) Plaintiffs Kim**, volume** registered housing construction and sales business on March 10, 2014* Home*** (business registration number: 122-92-****) and registered housing construction and sales business on January 2015, Incheon********************** home*) on the ground of 372-12 large scale 481.7mm2, 201.7m2, under the name of "****** home*) on the ground of the first floor, 14th apartment buildings on the ground (multi-family housing 36 households, officetels 29) and sold the above officetels in the first taxable period of value-added tax in 2015 (hereinafter collectively referred to as the "office of this case").

B. Plaintiffs’ non-declaration of value-added tax and imposition of value-added tax*** Head of the tax office

1) The Plaintiffs did not file a value-added tax return on the supply of the instant officetel (Plaintiff*, Park*, Park*, Plaintiff*, volume**, 15 year 201) on the ground that the instant officetel constitutes a national housing with an exclusive residential area of 85 square meters or less for each household, and thus, the instant officetel is exempt from value-added tax pursuant to Article 106(1)4 of the Restriction of Special Taxation Act (hereinafter “the instant exemption provision”) with respect to the instant officetel supply (Plaintiff*, Park*, Park*, Kim*, the volume*). 2)** the commissioner of regional tax office from May 24, 2017 to June 22, 2017 * as a result of a tax investigation with the Plaintiffs by the director of regional tax office, deeming that the instant officetel does not constitute a national housing under the instant exemption provision, and thus, the instant officetel supply of value-added tax is not subject to exemption.

3) Defendant**** on September 11, 2017, on the grounds that the instant officetel supply is not subject to value-added tax exemption, the head of the tax office issued a notice of correction and notification of each of the value-added tax and the additional tax indicated in the separate sheet of imposition (hereinafter “instant imposition disposition”). The Plaintiffs’ global income tax return and the imposition disposition of global income tax by the Defendants.

1) Plaintiff Kim*, Park*, Park* filed a comprehensive income return for the year 2014, the amount of income from the sale of the said aggregate building shall be 4,901,250,000 won (the amount of income shall be 50% of each share of 9,802,50,000 won) and the amount of income for the immediately preceding taxable period shall be 2013, the amount of income for the immediately preceding taxable period shall be less than 36,00,000 won, which is the standard amount of income for the construction business under Article 143(4)2 (b) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26982, Feb. 17, 2016; hereinafter the same shall apply) and the amount of income subject to the application of the simplified expense rate was calculated by deducting the amount of income subject to the application of the above income amount from the

2) Plaintiff Kim**, volume*, while filing a comprehensive income tax for the year 2015, calculated the amount of income generated from the sale of the said aggregate building by deducting the amount of income generated from the sale of the said aggregate building from the amount of income to the amount of income for the year 2015, on the ground that the amount of income for the immediately preceding taxable period is less than 36,00,000 won, which is the standard amount of income for the construction business under Article 143(4)2 (b) of the former Enforcement Decree of the Income Tax Act, and that the amount of income for the year 2014, which is less than 36,00,000 won, is subject to the application of simple expense rate, and the amount of income for the year 2015.

3)*** As a result of the tax investigation against the Plaintiffs, the Director of the Regional Tax Office notified the Defendants that the annual income tax should be imposed on the Defendants by deeming that the annual income of 2015 exceeds 150,000,000 as a businessman who newly commenced his/her business in 2014, not in 2013 but in 2014, the annual income of 2014 constitutes subject to application of standard expense rate. Plaintiff**, volume**, a businessman who newly started his/her business in 2015, not in 2014, as a businessman who had commenced his/her business in 2015.

4) The Defendants determined the amount of income by deducting the amount applied by standard expense rate from the amount of income earned by the Plaintiffs, and notified the correction and notification of each global income tax and global income tax as indicated in the separate disposition sheet (hereinafter “instant global income tax imposition disposition”).

[Reasons for Recognition] Entry of Evidence Nos. 1 through 5, the purport of the whole pleadings

2. Whether the disposition of value-added tax in this case is legitimate

A. The plaintiffs' assertion

1) The instant officetel obtained a building permit for business facilities to meet the requirements for the building permit under the Building Act, and constitutes a residential building which is designed and constructed from the beginning for a room, kitchen, living room, bathing room, floor heating facility, etc., and is sold for residential purposes and used for residential purposes by occupants. As such, the instant officetel constitutes a national housing prescribed by Presidential Decree, which has an exclusive residential area of 85 square meters or less per household and is subject to the exemption of value-added tax, and the instant officetel’s supply constitutes an object of the exemption of value-added tax, and thus, the disposition imposing value-added tax on different grounds is unlawful.

2) Even if the supply of an officetel does not fall under the category of VAT exemption, the Plaintiffs were found to have failed to report and pay the value-added tax on the supply of the instant officetel on the grounds that the supply of an officetel constitutes the subject of VAT exemption. In view of the fact that the Plaintiff trusted the decision of the Tax Tribunal revoking the disposition imposing value-added tax on the grounds that the supply of the instant officetel constitutes the subject

B. Determination

1) The instant provision on exemption from value-added tax and Articles 106(4)1 and 51-2(3) of the Enforcement Decree of the Restriction of Special Taxation Act stipulate that “The supply of housing below the scale of national housing under the Housing Act” is one of the objects of value-added tax exemption. Article 2 subparag. 3 of the former Housing Act (wholly amended by Act No. 13805, Jan. 19, 2016; hereinafter the same) stipulates that “The housing whose area used exclusively for the purpose of residence in the scale of national housing is less than 85 square meters per house or household (the housing whose exclusive residing area per house or household is not more than 100 square meters in the Eup/Myeon area other than the Seoul Metropolitan area under Article 2 subparag. 1 of the Seoul Metropolitan Area Readjustment Planning Act).”

Article 2 of the former Housing Act defines “house” as a whole or part of a building in which members of a household can live an independent residential life for a long time, and classify it into detached houses and apartment houses. Article 1-2 of the same Act defines “quasi-housing” as a building other than a house and its appurtenant facilities as a residential facility, and distinguish between houses and quasi-housing. Article 2-2 subparag. 4 of the former Enforcement Decree of the Housing Act (wholly amended by Presidential Decree No. 27444, Aug. 11, 2016) defines “house” as one of quasi-housing. Article 2(2) of the Building Act, Article 3-4 [Attachment Table 1] of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 25786, Nov. 28, 2014); Article 3-5 [Attachment Table 1] of the Enforcement Decree of the Building Act and Article 3-5 [Attachment 1] of the Enforcement Decree of the Building Act as an officetel’s business facilities.

In this case, ① The Restriction of Special Taxation Act provides for “house below the size of national housing under the Housing Act” as one of the items of exemption from value-added tax, and there is no separate definition provision on “house”. Thus, the scope of “house” under the exemption provision should be interpreted in accordance with the purport and purpose of the provision. On the other hand, the interpretation of tax law is prohibited in accordance with the law, unless there are special circumstances, and it can be interpreted as an extension or analogical interpretation with favorable interests for the taxpayers, and in particular, it is consistent with the principle of tax law to strictly interpret that it is difficult to objectively determine the scope of “house below the size of the housing to be used at the time of the first exemption from value-added tax” as the standard for the “house below the size of the housing to be used only for the purpose of the construction,” and thus, it is difficult to objectively determine the size of the housing to be used for the purpose of the housing in question as the standard for the purpose of the provision to promote the supply of the housing in question.