Whether the area of a balcony is included in calculating the exclusive use area of a high-class house

In the case of a general apartment and a main complex building, it is illegal to impose tax by including the balcony area in the area for exclusive use of the balcony in the case of a main complex building, which is generally accepted by the taxpayer, in violation of the practice of national tax administration.

Transfer income tax reduction or exemption for purchasers of Newly-built houses under Article 99 of the Restriction of Special Taxation Act

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 114,529,360 against the Plaintiff on April 7, 2006 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The court's reasoning concerning this case is the same as the reasoning of the judgment of the court of the first instance except for dismissal or addition as stated in Paragraph (2). Thus, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts to be dried or added;

(a) The exclusive area of 3rd and 19th parallels shall be written in "exclusive area";

(b) in accordance with Part 6, paragraph 18, the term "as stipulated," shall be amended to read "as stipulated;"

(c) by adding a lower part to the 9th page 18 following.

In this regard, the defendant argued that the "area exclusively used for a de facto residence" is interpreted and applied as the "area exclusively used for a de facto residence regardless of the use classification of the public record or the authority's building permit, change of structure, civil transaction concept, etc. according to strict interpretation and the principle of substantial taxation as to the "area exclusively used for a de facto residence" under Article 89 subparagraph 3 of the Income Tax Act and Article 156 subparagraph 2 of the Enforcement Decree of the same Act, since the space used by the plaintiff as a balcony and the space used as a balcony are the same as the height of the space used by the plaintiff as the same material, and the temperature adjustment can be made through the opening and closing of the boundary, and therefore it is possible to do so.

According to the results of the fact-finding on the balcony part of the balcony part of the house in this case, the heating exhaust was not constructed at the time of sale. The space used as a residence of the house in this case and the space used as a balcony is the same as the outer shape and the space used as a balcony is the same and the outer shape is the same as the height of the space. Among them, the fact that the system windows combining the wall containing a stoves with the wall containing a stoves pressle and glass with an Aluminum frame are being constructed and installed. Furthermore, it was examined whether the Defendant, prior to the disposition in this case, was subject to taxation on the whole area including the exclusive use area (the exclusive use area) and the balcony area in the public register prior to the disposition in this case, there is no evidence to acknowledge it, and rather, the tax office imposed the exclusive use area in the public register except for balcony as the exclusive use area in the public register in the above opinion. Thus, the above assertion by the Defendant is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Uwon District Court 2007Guhap3771 ( November 28, 2007)]

1. The Defendant’s disposition of imposition of capital gains tax of KRW 114,529,360 against the Plaintiff on April 7, 2006 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On June 26, 1999, the Plaintiff and 000 married couple concluded a sales contract with the Seoul 000 Stock Company and the 000000 Stock Company on June 26, 199 with respect to 00 Dong 00-dong 000-dong 000 and 000-dong 000 dong 000-dong 0000 (hereinafter “this case’s housing”) on the ground-based multi-family housing with 117,480,000 won for the same day, and paid 117,000,000 won for the same day. The sales contract states that the exclusive use area of the housing in this case is marked as 164.97 square meters, and includes other 62.3912 square meters for the public use area, 2227.3602 square meters for the underground parking lot area, 101.292.292 square meters for the same day.

B. After that, on December 12, 2002, the Plaintiff and 1/2 shares in each of the instant housing were registered for ownership transfer in the future with respect to the instant housing on December 12, 2002. The instant housing indicated the area as 164.97 square meters in the indication column of the aggregate building register or the section of exclusive ownership in the real estate register.

C. On January 24, 2005, the Plaintiff and 000 sold the instant house to Maapsung, and the registration of ownership transfer was completed on February 28, 2005.

D. In accordance with Article 99(1) of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002) and Article 29 of the Addenda of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002), the Plaintiff filed an application for reduction or exemption of transfer income tax for the transfer of one-half shares among the instant housing in 2005.

마. 이에 대하여 피고는 주상복합건축물인 이 사건 주택의 경우 커튼월(curtain wall)공법이라는 시공공법의 특성상 건물 외벽 바깥부분에 발코니가 설치되어 있는 일반아파트와는 달리 건물 외벽 내붑에 발코니가 존재하여 발코니 면적 31.53㎡는 전용면적에 포함시켜야 하고, 이 경우 양도소득세 감면요건인 전용면적 165㎡를 초과하게 된다는 이유로 원고의 감면신청을 배제한 채 2006. 4. 7. 원고에게 2005년 귀속 양도소득세 114,529,,360원을 결정∙고지하였다(이하 '이 사건처분'이라 한다).

In addition to the grounds for recognition, Gap evidence 1, Eul evidence 2-2, Eul evidence 1-1 to 3, Eul evidence 2-4 and the purport of the whole pleadings.

2. Determination of legality of disposition

A. The plaintiff's assertion

소득세법(2002. 12. 18. 법률 제6781호로 개정되기 전의 것)상 고급주택의 요건에 관한 규정에서의 '전용면적'이라는 개념은 같은 법이나 그 시행령 등에 별도로 정의규정을 두고 있지 않은 이른바 차용개념인데, 구 주택건설촉진법 시행규칙(2003. 12.15. 건설교통부령 제382호로 전문개정되기 전의 것) 제17조 제2항 제2호의 규정에 의하면 공동주택의 경우 외벽의 내부선을 기준으로 전용면적을 산정하되, 공용부분의 면적을 제외하도록 되어있고, 공동주택의 경우 발코니 면적은 전용면적에 포함되지 않는 별도의 '서비스 면적'으로 취급하는 것이 거래계의 확립된 관행이었으며, 건축심의 및 허가등의 건축 관련 행정에서도 수십 년간 이를 반복하여 확인하여 왔고, 건축물재장이나 부동산등기부와 같은 공부상 전유면적에서도 발코니 면적은 제외되어 왔으며, 과세관청도 공부상의 전용면적으로 기준으로 업무를 처리하여 왔는바, 그럼에도 단지 외벽이 커튼윌 공법으로 시공되었다는 이유만으로 종전과는 달리 발코니 면적을 전용면적에 산입하여 조세특례제한법 소정의 양도소득세 감면의 대상에서 제외함은 엄격해석의 원칙 및 실질과세의 원칙에 반하여 위법하다.

(b) Relevant laws;

It is as shown in the attached Form.

C. Determination

(1) Issues of the instant case

According to the provisions of Article 99(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(3) of the Income Tax Act (amended by Act No. 67781 of Dec. 18, 2002), and Article 156(2) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1751 of Oct. 1, 2002), the tax authorities shall reduce or exempt all transfer income tax on any income accruing from a resident’s acquisition of a newly-built house from a housing developer and transfer it within five years from the date of acquisition. In cases where a newly-built house falls under the exclusive use area (including the exclusive use area of a house) of high-class housing and its actual transaction price is more than 160 million won at the time of transfer.

The fact that the actual transaction price of the instant house exceeds 600 million won at the time of transfer does not conflict between the parties, and as recognized earlier, the exclusive use area of the instant house does not meet the high-class housing standards, but if the balcony area is included in the exclusive use area in the public account book, the high-class housing standards are

Therefore, the issue of this case is whether the balcony area should be included in the exclusive area in judging whether it is a high-class house.

(2) No provision concerning the calculation of the area 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 11-5 subparag. 1 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 18146 of Nov. 29, 2003) and Article 17(1) and (2) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Construction and Transportation No. 382 of Dec. 15, 2003) introduced the concept of "exclusive area" and introduced the concept of "exclusive area" on the basis of the inside line of the outer wall in cases of multi-family housing, the exclusive area shall be calculated on the basis of the inside line of the outer wall, but the area of the common area shall be excluded,

Article 2, subparagraph 3 of the current Housing Act also stipulates it as well.

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 for one household under Article 92-2 subparagraph 1-2 of the Enforcement Decree of the Corporate Tax Act, the special exemption from the transfer income tax for the transfer income under Article 92-2 (2) 1-2 of the Enforcement Decree of the Corporate Tax Act, the deduction of the housing fund under Article 112 (1) 1 of the Enforcement Decree of the Income Tax Act, the deduction of the three houses for one household under Article 167-3 (1) 2 (c) of the Enforcement Decree of the Income Tax Act, the special exemption from the self-management real estate investment company under Article 51-2 of the Enforcement Decree of the Restriction of Special Taxation Act, the exemption from the aggregate of the total Real Estate Tax Act.

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 a "floor area" as a "building area of the horizontal plane projection area of the part enclosed by the central line of walls, columns, or other similar partitions," and stipulates that the floor area of the building ladyp and other similar things shall be calculated by multiplying the length abutting on the longer outer wall abutting on the oars, etc. (referring to the area from the center line of the outer wall to the end of the strip, etc.) by 1.5 square meters, regardless of whether or not the columns or bearing walls are installed, by the length abutting on the longer outer wall abutting on the oars, etc. (referring to the area from the center line of the outer wall to the end of the strip, etc.) by 1.5 square meters, regardless of whether or not the columns or bearing walls are installed. Article 25(2)3 of the Act on the definition and management of the condominium.

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

The concept of ‘balconc or balcony' (in the Enforcement Decree of the Building Act amended by Presidential Decree No. 19163 of Dec. 2, 2005, as seen below, it introduced the concept of ‘balconc' and used it in combination with the term of ‘balconc with the term of ‘balconcing') has been used for a long time. However, there is no direct provision on ‘balconc with the term of ‘balconc' in the related Acts and subordinate statutes. However, there is no provision on ‘balconc with the floor area' 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 of Dec. 2, 2005, Article 2(1)15 regards ‘balconc with the outer wall of the building' as a buffer space connected to the inside and outside of the building, and it is additionally treated as a class 13(c) of the balcony in calculating the floor area.

A balcony in multi-family housing in Korea is generally separated from a room, a living room, a kitchen and a bath room (hereinafter referred to as a "main body") and is often separated from a space that is attached to the front or the rear side of a multi-family housing, and the main body is divided into a part of a wall, a door, a window, etc. Unlike the main body, there is no heating room but may be installed. The floor is installed with materials such as others for the use of water, the wall is treated as a painting, and a storage is often attached to a storage that keeps goods.

In Korea, the emergence of balcony in apartment houses is known to be the first place by the Korea-U.S. Foundation in 1958. The early balcony was protruding out of the outer wall in its structural characteristics, and its size was small. Since apartment houses represented by apartment houses have spreaded, they have to adapt to the new residential environment of apartment houses only in the past, and in the process, there has been no space of "math" in the apartment houses. Accordingly, construction companies have more widened balcony than the outer wall installed in the outer wall as a space to suit the needs of housing users, and it has been gradually difficult to build the apartment as soon as possible in the apartment house or to use the outer wall in the outer wall in the outer wall of the apartment building, and it has become more and more inappropriate to install the outer wall in the outer wall of the balcony with a height of the outer wall than the outer wall of the apartment building and to install the outer wall in the outer wall of the apartment building.

(4) Admission and attitude to the architectural administration and tax administration of the balcony of the apartment house

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.

앞서 채택한 증거들에 갑 제4, 5, 7호증, 을 제7호증의 각 기재 및 변론의 전취지를 종합하면, ①그동안 건설업계에서는 공동주택을 분양함에 있어서 계약면적으로 전용면적과 공급면적(전용면적+공유면적)이라는 개념을 사용하면서 발코니의 면적을 '서비스 면적'으로 처리하여 이를 계약면적이나 공급면적에 포함시키지 아니하는 거래관행이 거의 예외를 찾아볼 수 없을 정도로 확립되어 왔고, 수분양자들을 포함한 일반 국민들도 이를 당연한 것으로 인식하여 온 사실, ②이러한 관행은 건축허가 내지 주택건설사업계획승인에서도 그대로 이어져 허가권자나 승인권자도 발코니의 면적을 건축연면적에서 제외한 채 허가나 승인 여부를 결정하여 온 사실, ③다만, 서울시는 원고가 이 사건 주택을 취득한 이후에 커튼윌 공법으로 시공된 21층 이상 주상복합건물의 경우 발코니를 바닥면적에 산입하는 내용의 건축심의위원회 심의기준을 만들었고, 건설교통부도 한때 같은 내용의 기준을 마련하고 법제화를 시도하다가, 일반아파트 또는 20층 이하의 주상복합건물과의 형평성 문제로 이를 백지화한 사실, ④집합건물의 소유 및 관리에 관한 법률이 집합건축물대장에 구분소유권의 목적인 '전유부분'의 면적을 등록하도록 규정하고 있음에도, 그동안 전국 어디에서나 집합건축물대장상 전유부분의 면적에는 발코니 면적이 제외되어 왔고, 부동산등기부의 '전유부분'의 면적을 등록하도록 규정하고 있음에도, 그동안 전국 어디에서나 집합건축물대장상 전유부분의 면적에는 발코니 면적이 제외되어 왔고, 부동산등기부의 '전유부분의 건물표시란'에도 마찬가지로 발코니 면적이 제외된 전용면적이 표시되어 온 사실이 인정된다.

Accordingly, in the transaction of multi-family housing among the general public, the price is determined mainly on the basis of the area for exclusive use on the public register, and there is no interest in how the balcony area becomes the area of the balcony, and in various reports related to taxes, various practices have been established on the basis of the area for exclusive use on the public register except the balcony area, and in imposing taxes, the tax authorities also have designated the area of the area for exclusive use on the public register (exclusive area) as the tax data if the "exclusive area" is the standard for imposing taxes. Furthermore, in the case of this case, the stock company, etc. that supplied the instant housing, which has built the area of 164.97 square meters as the area for exclusive use (excluding the balcony area) with smaller than 165 square meters based on the area for high-class housing (excluding the area of the balcony area) under the statutes

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

(5) 커튼윌 공법에 관한 피고 주장에 대한 판단

피고는 일반아파트와 주상복합건축물은 규율하는 법령이 서로 다르고, 특히 커튼윌 공법을 사용한 주상복합건축물은 구조적으로 개방성을 상실하여 건축법상의 '노대'에 해당하지 아니하므로 일반아파트와 주상복합건축물을 달리 보아야 한다고 주장한다.

일반적으로 '커튼윌'이라 함은 건물의 하중을 받는 비내력벽과는 달리 건물의 하중은 받지 아니한 채 단지 건물 내외부를 차단하는 역할만 하는 비내력 칸막이벽으로, '커튼윌 공법'이란 주로 비계를 설치하기 어려운 고층건물을 건축함에 있어서 공장 등에서 미리 제작한 패널을 갖다 붙이는 식으로 외벽을 설치하는 건축공법을 말한다.

In light of the above, it is difficult to view that a building or an outer wall as stipulated in the laws and regulations related to the housing or construction is included in the structure of a building in the middle of the pressing constructed by a public law. However, as seen earlier, in the case of a general apartment, it is difficult to view that there is a qualitative difference between the outer walls and the windows of a general apartment balcony and the outer wall of a major apartment building on the side of the balcony or the middle of the balcony, not simply with the outer wall, but with the outer wall simply on the surface of the main body, a reinforced concrete wall in the shape of the balcony has been installed on the outer side of the balcony or in the middle of the balcony, and a wall has been built on the outer side of the main body with a considerable height and size. In addition, it is general to install a window in the outer space of the balcony in order to block dust and the supporting air flowing, etc. on the outside of the balcony. In this regard, if there is a qualitative difference between the outer wall and the outer wall of the main apartment building, it is difficult to treat it in advance in the construction of the building.

Furthermore, in general, apartment buildings are subject to the former Housing Construction Promotion Act, the current Housing Act, and the main apartment building are subject to the Building Act, but there is no difference in their residential purpose, and the Ministry of Construction and Transportation interpret that the provisions of the Housing Act, not the Building Act, apply mutatis mutandis to the calculation method of exclusive use areas, etc. In the case of main apartment buildings. If the term "Nomb" under the Enforcement Decree of the Building Act is defined as a structure exposed to the outside, it is generally the same as the main body, and there is no difference in that the apartment balcony installed with the outer wall and window are not included in the class of the street under the Building Act. Furthermore, Articles 2 and 3 of the Enforcement Decree of the Building Act, which were amended by Presidential Decree No. 19163, Dec. 2, 2005, which are installed in a house with a building permit obtained prior to the enforcement of the above Enforcement Decree, can be used as a living room, bedroom, storage, etc., and in this case, it appears that the general apartment is not installed in the main apartment building's or apartment.

Therefore, in the case of the latter by viewing the general apartment and the main complex building differently, it is illegal to impose tax by including the balcony area in the exclusive use area, which is generally accepted by the taxpayer, as it goes against the national tax administration practices.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.