Early High Court Decision 2008Du1037 ( December 31, 2008)

It shall not be included in the area of the balcony of an apartment constructed by the supply of a studs.

Unlike the previous cases, it is unreasonable to include a balcony area in the exclusive area and exclude it from the object of reduction or exemption of capital gains tax under the Restriction of Special Taxation Act solely on the ground that the outer wall is constructed by a public law.

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

1. The Defendant’s disposition of imposition of capital gains tax of KRW 596,129,950 against the Plaintiff on December 14, 2007 shall be revoked.

2. The litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Details of disposition;

A. On October 15, 2001, the Plaintiff concluded a sales contract with △△ Development Co., Ltd. and ○○○○○○○○○○-dong, 87 ground reinforced concrete building 46, with the price fixed as KRW 678,472,00 for the instant housing (hereinafter “instant housing”).

B. After that, on June 28, 2004, the Plaintiff entered the ownership transfer registration for the instant housing. The instant housing is indicated as the area of 156.857 square meters in the aggregate building register or in the indication column of the building with exclusive ownership in the real estate register.

C. On June 11, 2005, the Plaintiff sold the instant house to ParkA and KimB in KRW 2,785,000,000, and on July 29, 2005, the ownership transfer registration was made in the name of ParkA and KimB.

D. In accordance with Article 99(1) of the Restriction of Special Taxation Act (amended by Act No. 6762 of Dec. 11, 2002), the Plaintiff applied for reduction or exemption of capital gains tax due to the transfer of the instant house, and voluntarily paid KRW 153,645,500 for special rural development tax.

E. As to this, the Defendant issued a correction and notification of the Plaintiff on December 14, 2007, on December 14, 2007, of KRW 596,129,950, to the Plaintiff on the ground that the balcony exists in the outer wall of the building and the area of the balcony exceeds 165 square meters, unlike the general apartment with a balcony installed in the outside part of the building's outer wall due to the characteristics of the city public law, such as Curtain method, unlike the general apartment with a balcony installed in the outside part of the building's outer wall. In this case, the Defendant excluded the Plaintiff from the Plaintiff's application for reduction and exemption on the ground that the area exceeds 165 square meters, which is a requirement for reduction and exemption of capital gains tax (hereinafter referred

F. On March 13, 2008, the Plaintiff filed an appeal seeking the revocation of the instant disposition with the Tax Tribunal, and the Tax Tribunal dismissed the said appeal on December 30, 2008.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 9, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination of legality of the instant disposition

A. The plaintiff principal

Under the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), the concept of "exclusive floor area" in the provisions on the requirements of high-class houses is the so-called loan concept that does not have a separate provision on the same Act or its Enforcement Decree. Under the provisions of Article 17 (2) 2 of the former Enforcement Rule of the Housing Construction Promotion Act (amended by Ordinance No. 382 of Dec. 15, 2003), apartment houses have exclusive floor area calculated based on the inside line of outer walls, but excludes the area of common use area, and in the case of apartment houses, treating balcony area as "a separate service area which is not included in the exclusive floor area" was established in the transaction division, and even in the administration related to construction, it has been repeatedly confirmed that the area of balcony area was excluded from the exclusive floor area in the public register such as building ledger or real estate register, and it has been dealt with on the basis of the exclusive floor area in the public register. However, it is unlawful to exclude the area of balcony from the previous construction method.

(b) Related statutes;

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

C. Determination

1) The dispute point of this case

According to 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 subparag. 3 of the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), and Article 156 subparag. 2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002), the tax authorities shall reduce or exempt all transfer income tax on income accruing from a resident’s acquisition of a newly-built house from a housing construction business operator and transfer it within five years from the date of its acquisition. In cases where a newly-built house falls under a high-class house with an exclusive use area of at least 165 square meters and its actual transaction price at the time of transfer exceeding 60 million won, the reduction regulations shall not apply.

The fact that the actual transaction price of the instant house exceeds 600,000 won at the time of transfer, and that the area for exclusive use by the public register of the instant house does not meet the high-class housing standard, but the fact that the area for exclusive use by public register of the instant house meets the high-class housing standard if the area for exclusive use by public register is included in balcony area

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.

(ii) the constructive provisions 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 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 Presidential Decree No. 382 of Dec. 15, 2003) introduce the concept of ‘exclusive area' and stipulate that the exclusive area shall be calculated based on the inside line of the outer wall in cases of multi-family housing, but the area of common area shall be excluded. The same applies to Article 2 subparag. 3 of the current Housing Act.

Furthermore, Article 89 subparagraph 3 of the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002) and Article 156 subparagraph 2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 17751 of Oct. 1, 2002) are used as the concept of "national housing" on the basis of "exclusive area" or "national housing" in determining the income tax exemption for one household under Article 92-2 (2) 1-2 of the Enforcement Decree of the Corporate Tax Act, special taxation for capital gains under Article 92-2 (2) 1-2 of the Enforcement Decree of the Corporate Tax Act, deduction of housing funds under Article 112 (1) of the Enforcement Decree of the Income Tax Act, deduction of gross real estate holding tax under Article 3

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 any part thereof, which is surrounded by the central line of walls, columns, or other similar partitions, as "floor area", and stipulates that the pents of a building and other similar floors of the building are deducted by 1.5 meters from the length abutting on the longer outer wall abutting on the street, etc. from the street, etc. (referring to the area from the center line of the outer wall to the end of the streetcar, etc.) regardless of whether a rail, etc. is installed. Article 2 subparag. 3 and Article 54(2)3 of the Act on the Ownership and Management of Condominium Buildings define as "exclusive part of the building that is the object of sectional ownership" and register the area of the section of exclusive ownership in the building ledger.

3) The concept of "balcony" and its transition process

In multi-family housing, the concept of ‘balconc or balcony' has been used for a long time, but the related laws do not have any direct provision on ‘balconc.', the term ‘balconc or balcony' in Article 119 (1) 3 (c) of the Enforcement Decree of the Building Act is used, and the Enforcement Decree of the Building Act was amended by Presidential Decree No. 19163 on December 2, 2005, it defines ‘balconc or balcony as a buffer space linking the inside and outside of the building to be installed additionally to the outer wall of the building for the purpose of prospect, rest, etc.

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 separated from a space that is attached to the front or rear side of a multi-family housing, and the main body is divided into a part of a wall, a door, a window, etc. from the main body. Unlike the main body, there is no heating facility, water is installed, water is installed, the floor is processed with materials such as others for water use, the wall is finished into a painting, and a warehouse that keeps ordinary goods is attached.

In Korea, the early balcony was protruding out of the outer wall, and it was inevitable to open it to the outside inevitably due to these structural characteristics. Since apartment units represented by apartment units were spreading and distributed, construction companies began to provide more wide balconys according to the needs of housing consumers without increase in the sale price. Accordingly, balcony became an essential space for building first, using water, or storing things inappropriate for indoor storage, and its size began to be installed in the same structure as the main body because it is difficult to install it more gradually and considerably long long ago. Accordingly, in the case of general apartment units, it was installed in the outer side of balcony or its middle part of the balcony, which serves as the columns together with the main body, with a height of reinforced concrete or building size as the outer part of the outer part of the balcony, and the outer part of the balcony has been installed in the outer part of the balcony with a height of reinforced concrete or building size as the outer part of the wall, and the outer part of the balcony has been installed as the outer part of the outer part of the balcony, and it has been gradually similar to the outer part of the balcony.

4) Admission to and attitude in the construction administration and tax administration of the balcony of the 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 aforementioned evidence, Gap's evidence Nos. 4, 5, 6, and 8-1 through 53, and the purport of the whole arguments and arguments, the construction industry has been established to treat the balcony's area as "service area" in the contract area when selling apartment houses, and the transaction practices that do not include it in the contract area or the supply area are almost difficult to find exceptions. The general public, including the buyer, recognize it as natural. ② Such practices are also in the construction permission or the approval of the construction project plan plan, and the permission authority or approval authority has decided to grant permission or approval without excluding the balcony's area from the total building area. ③ However, the construction deliberation standards for the balcony's floor area were established after the plaintiff acquired the housing of this case, and the area of the balcony's exclusive ownership or multi-use building's exclusive ownership is excluded from the total building area, and the construction project area of the apartment or multi-use building's exclusive ownership is excluded from the total building area of the apartment or multi-use building.

Accordingly, in trading multi-family housing among the general public, there is no interest in how and how the balcony area becomes a separate balcony area, and even in making various reports related to taxes, the balcony area (based on the exclusive use area in the excluded public register, and even in cases where the tax authorities impose taxes, the ‘exclusive use area' as the standard is also the taxation data, the area (exclusive use area) of the portion of exclusive ownership registered in the public register as the taxation data. In addition, in this case, the △ Development Co., Ltd. that supplied the instant housing constructed the instant housing as the exclusive use area (excluding the balcony area) with the area of 165 square meters under the law and regulations at the time by trusting these practices. The Plaintiff also appears to have purchased the instant housing by purchasing it.

Considering the circumstances, the administrative practices related to housing and construction that do not include the balcony area in the area for exclusive use by multi-family housing have been established, and in the past, the tax administration has accepted it as it is, and the practical practices that consider the area for exclusive use by the public account as taxation data have been established, and such practices (the practice seems to have been generally accepted

5) Real estate register, manager of a building ledger, legal character

One of the main management purposes of the real estate register and building register is to ensure prompt and accurate taxation. Unlike other documents, the accuracy of each entry in the real estate register and building register managed by the state, etc. is to be presumed legally or in fact.

In order to accomplish the underlying taxation principle, the tax authority should levy taxes according to the matters entered in the real estate register and building register, and such needs should be further required in the standardized and large-scale aggregate buildings. If the tax authority permits taxation, different from the area of the section for exclusive use entered in the real estate register and building register, such rapidness and accuracy may be damaged.

Therefore, in order for the tax authorities to include and impose the balcony area in the area for exclusive use of multi-family housing, they should reflect it in the real estate register and building ledger managed by the State, or if there is no such reflection, there is no evidence or explicit taxation provision that can recognize the above circumstances in this case.

6) Determination on the Defendant’s petition for Crash Construction

The defendant asserts that the laws governing general apartments and main complex buildings are different, and, in particular, the main complex building using construction method in order to lose its structural openness and thus, it does not fall under the 'No.' under the Building Act. Therefore, general apartments and main complex buildings should be viewed differently.

In general, the term "curtain" means a building construction method, unlike a bearing wall that receives the load of a building, which installs outer walls in which only the role of blocking the inside and outside of the building is a non-proof partition wall, and the term "curtain construction method" means a construction method which installs outer walls in the form of a panel made in the factory, etc., in which it is difficult to install a rain system mainly.

In light of the above, there is a lot of room to view that a building or an outer wall provided in the laws and regulations relating to the housing or construction is built in a way that it plays a role of blocking the inside and outside of the building outside of the date of the building. However, in the case of a general apartment as seen earlier, it is difficult to view that there is a qualitative difference between the outer wall and the outer wall of a general apartment balcony and the outer wall of a main apartment building, and if there is a difference, it is difficult to view that a structural balcony is built outside the building and the outer wall of a building, not simply installation of an outer wall, but also installation of a reinforced concrete wall that serves as a columns and bearing wall jointly with the main body in the balcony right side or the middle of the balcony, and the outer wall and the outer wall of the main apartment building are built in the open space. For the same reason, it is difficult to regard that there is a difference between the outer wall and the outer wall of a general apartment and the outer wall of the main apartment building, it is difficult to treat it differently in tax administration on the same reason.

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 terms of residential purpose. In the case of main apartment buildings, the Ministry of Land, Transport and Maritime Affairs 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 the floor form exposed to the outside, it is generally the same structure as the main body, and there is no difference in that the balcony of an apartment constructed with an outer wall and a window cannot be included in the class of the building 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 were installed in the same house with a building permit obtained prior to the enforcement of the above Enforcement Decree, can be used as a living room, storage, and apartment installed in this case can be considered as a general apartment structure or apartment.

7) Sub-determination

In the case of the former taking the apartment of the method of construction, which is similar to the main apartment building, differently from the general apartment, it is illegal to impose the tax by including the balcony area in the exclusive use area, as it goes against the national tax administration practice accepted by the taxpayer.

3. Conclusion

If so, the plaintiff's claim for objection case is reasonable, and therefore, it is accepted.