Plaintiff (Appointed Party)

The head of Dong-gu in Yananan-si

January 12, 2017

Daejeon District Court Decision 2015Guhap2071 Decided October 5, 2016

1. The plaintiff (appointed party)'s appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff (Appointed Party).

The judgment of the first instance is revoked. The defendant's disposition rejecting acquisition tax correction made on June 25, 2015 against the plaintiff (appointed party; hereinafter referred to as "Plaintiff") and the appointed party 2 and the disposition rejecting acquisition tax reduction or exemption or rejection made on July 17, 2015 is revoked.

1. Details of the disposition;

The reasoning for this part of the judgment of the court of first instance is the same as that of the corresponding part of the reasoning of the judgment of the court of first instance. Thus, it is accepted by Article 8(2) of the Administrative Litigation Act and Article 420 of the

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

In the following respect, each of the dispositions of this case is unlawful.

(1) The instant building constitutes a “multi-family housing” under Article 2(1)3 of the former Restriction of Special Local Taxation Act, Article 2 subparag. 2 of the former Housing Act (wholly amended by Act No. 13782, Jan. 19, 2016; hereinafter the same) Article 2(1) of the former Enforcement Decree of the Housing Act (wholly amended by Presidential Decree No. 27444, Aug. 11, 2016; hereinafter the same shall apply), Article 3-5 [Attachment Table 1] of the former Enforcement Decree of the Building Act (wholly amended by Presidential Decree No. 26974, Feb. 11, 2016; hereinafter the same shall apply). Thus, deeming the instant building to fall under a “multi-family housing” under each of the above Acts and subordinate statutes, solely based on a certified copy of real estate register or a building register, and imposing taxation is unlawful against the substance over form doctrine and the principle of imposition of the current status (section 1).

(2) Although the owner of a multi-family house, which is a multi-family house under the law, is more than a multi-household owner who is a multi-family housing, it is unlawful to exclude the multi-family house from the subject of exemption from acquisition tax, contrary to Article 31(1)1 of the former Restriction of Special Local Taxation Act, contrary to the principle of fair taxation (section 2).

(3) From among the 18 households of the instant building, at least 17 households are entitled to exemption from acquisition tax under Article 31(1)1 of the former Restriction of Special Local Taxation Act because their exclusive area is less than 60 square meters, and even if the instant building is not subject to exemption from acquisition tax, since the acquisition value per each household does not exceed 600 million won, the acquisition tax rate shall be applied pursuant to Article 11(1)8 of the former Local Tax Act (wholly amended by Act No. 13427, Jul. 24, 2015; hereinafter the same shall apply) even though the acquisition value per each household does not exceed 60 million won, it is unlawful to consider the entire acquisition value of the instant building as the basis for calculating the acquisition tax rate (section 3).

(4) Of the 18 households of the instant building, one household exceeds 85 square meters for exclusive use by its 18 households, but it is unlawful to uniformly impose special rural development tax on the portion exceeding 85 square meters by disregarding the difference between the downtown and rural communities (section 4).

B. Relevant statutes

The reasoning for this part of the judgment of the court of first instance is the same as that of the corresponding part of the reasoning of the judgment of the court of first instance. Thus, it is accepted by Article 8(2) of the Administrative Litigation Act and Article 420 of the

C. Determination

(1) As to Chapter 1

According to Article 2 (1) 3 of the Restriction of Special Local Taxation Act, Article 2 (1) 2 of the former Housing Act, Article 2 (1) of the former Enforcement Decree of the Housing Act, and Article 3-5 (Attached Table 1) 2 of the former Enforcement Decree of the Building Act, apartment houses, apartment houses, apartment houses, multi-household houses, and dormitories constitute apartment houses. Meanwhile, according to subparagraph 1 (c) of the attached Table 1 of the above attached Table 1, the number of floors used for housing (excluding underground floors) shall not exceed three floors: Provided, That where at least 1/2 of the floor area of the first floor is used as a parking lot and the remainder is used for any purpose other than housing, the relevant floor shall be excluded from the number of floors of the housing. ② The total floor area used for housing (excluding parking lots; hereinafter the same shall apply) shall be less than 660 square meters.

Comprehensively taking account of the purport of oral argument as to the instant case, ① the instant building consists of four stories above the ground, but the first floor is used as a parking lot, the other three stories (2,3, and 4 stories) are used as a house. ② The total floor area of the instant building used as a house is 639.95 square meters (=208.74 square meters on the second floor + 208.74 square meters on the third floor + 22.47 square meters) and is not more than 660 square meters. ③ The instant building is acknowledged to have been composed of not less than 18 households (2 stories + not more than 37 households on the second floor + 4 households on the ground of the foregoing recognition, but it is clearly possible for each apartment house to use the instant apartment house as a house under Article 2 (1) 3 of the Restriction of Special Local Taxation Act, Article 2 (2) 2 of the former Housing Act and Article 2-1 (c) of the former Enforcement Decree of the Housing Act as an independent house.

(2) As to Chapter 2

While a multi-family house corresponding to a multi-family house is not each household, but all of the multi-household houses are subject to the transfer registration of ownership, the multi-household house corresponding to a multi-family house becomes subject to the transfer registration of ownership by each household, as seen earlier, the owner of the multi-family house cannot be deemed zero (e.g., not more than 19 households, not more than 3 floors and not more than 1 households with an exclusive area of 60 square meters and less than 60 square meters among multi-household houses with four floors and less). On the other hand, Chapter II of the Plaintiff is also without merit.

(3) On the third ground for appeal

(A) According to Article 31(1)1 of the former Restriction of Special Local Taxation Act, where a rental business operator constructs a multi-unit house for the purpose of lease, where the apartment house or an officetel under Article 2 subparag. 3 of the Rental Housing Act was first purchased from the owner of the building for the purpose of lease from the owner, acquisition tax shall be exempted if the exclusive use area of the apartment house or officetel is less than 60 square meters.

As to this case, the building of this case is not a multi-household corresponding to a multi-family house, but a multi-family house corresponding to a multi-family house. Therefore, this part of the Plaintiff’s assertion premised on the premise that the building of this case is a multi-family house is a multi-family house is without merit.

(B) According to Article 11(1)8 of the former Local Tax Act, where a house is acquired due to a commercial transaction, the acquisition tax rate shall be 10/1,000 if the value at the time of the acquisition is not more than 600 million won, 20/1,000 if the value at the time of the acquisition is more than 60 million won but not more than 900 million won, and 30/1,000 if the value is more than 90 million won, it shall be applicable.

On April 19, 2015, the facts that the Plaintiff and the Appointed 2 purchased the instant building from the Nonparty on April 19, 2015 are as seen earlier. The instant building is a multi-family house constituting a single house, and at least 1,435,000,000 won of the acquisition value of the entire building of this case, not the acquisition value of each household, is calculated by applying 30/1,000 of the acquisition tax rate of 1,435,00,000 won based on the acquisition tax rate of 30/1,00 of the total acquisition value of the instant building, not the acquisition value of each household. Therefore, the Plaintiff’s assertion on this part is without merit.

(4) As to Chapter 4

According to Article 4 subparag. 11 of the former Act on Special Rural Development (wholly amended by Act No. 13383, Jun. 22, 2015), Article 4(4) of the former Enforcement Decree of the Act on Special Rural Development (wholly amended by Presidential Decree No. 26954, Feb. 5, 2016) and Article 2 subparag. 3 of the former Housing Act, a special rural development tax shall not be imposed on multi-family houses, etc. with an area for exclusive use by a household with an area of 85 square meters or less.

In full view of the purport of the argument as to this case’s health room, Gap evidence Nos. 4 and 5, the defendant imposed 59,000 won for only one household (117.82,00 square meters) exceeding 85 square meters for exclusive use among 18 households of the building of this case, and no special rural development tax is imposed for the remaining 17 households with an exclusive use area of not more than 85 square meters. This is lawful as it is in accordance with the provisions of each of the above Acts and subordinate statutes, and therefore, the plaintiff’s fourth ground for appeal is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

The judge’s seat (Presiding Judge) Kim-type crime

(1) The plaintiff asserts that the building of this case should be regarded as multi-family housing on the ground of Supreme Court Decision 93Nu7075 Decided August 30, 1993 and Supreme Court Decision 2008Du12672 Decided October 23, 2008, Seoul Administrative Court Decision 2007Du13210 Decided December 5, 2007, etc. However, the former argues that the building of this case should be regarded as multi-family housing, but the former is exempt from value-added tax on the supply of goods or services in the following subparagraphs (the supply of goods or services in each of the following subparagraphs shall be exempted from value-added tax on the national housing and construction services of the relevant house, and the latter is exempted from acquisition tax and registration tax on the house for which the former Local Tax Act (amended by Act No. 4451 of Dec. 27, 191) and Article 74(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 927, Sep. 12, 2006).