Whether the housing at issue falls under the national housing

The case holding that, in case where a housing constructor constructed and sold a house with the permission of a national housing, the housing shall constitute a national housing under the Housing Construction Promotion Act even if the purchaser uses it as a weekend house and does not reside at all at all times.

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

Whether a house shall be deemed national housing in cases where a seller of a house built with the exclusive use area of 85 square meters or less with the permission of national housing and the seller of a house sold in lots uses it as a weekend house and does not reside at all times (affirmative)

Where a housing constructor constructs and sells a house with an area of 85 square meters or less in a hot spring area with the permission of national housing, the housing shall constitute a national housing under the Housing Construction Promotion Act even if the seller uses it as a weekend house and does not reside at all times.

Article 3 of the Housing Construction Promotion Act, Article 30 of the Enforcement Decree of the same Act, Article 62 of the former Regulation on Tax Reduction and Exemption Act

The Defendant’s disposition of imposition of KRW 7,872,010, corporate tax for the year 1989 against the Plaintiff as of August 16, 1991, KRW 18,340,620, corporate tax for the year 1990, and KRW 3,144,100, value-added tax for the year 1990, KRW 15,178,420, and KRW 13,92,860 for the second year of the same year shall be revoked. The litigation cost shall be borne by the Defendant.

1. Disposition by the defendant

원고가 주택건설등록업자로서 1989년경 충북 ㅇㅇ군 ㅇㅇ면 ㅇㅇ리 ㅇㅇ번지의 1,357 토지를 매입한 후, 같은 해 6.17. ㅇㅇ군수로부터 주택건설사업계획승인을 받고 1990.3.경 그 지상에 국민주택규모인 세대당 주거전용면적 85㎡이하의 다세대 주택 3동 57세대를 신축하여 준공검사를 받고 그중 36세대를 분양한 사실에 대하여, 피고는 위 주택을 상시 비거주용인 주말주택으로서 국민주택이 아니라고 보아 1991.8.16.자로 위 매입토지에 관하여 조세감면규제법 제 62조에 의하여 위 토지의 양도자가 면제받았던 양도소득세를 원고의 법인세에 가산하여 1989년 귀속법인세 금 7,872,010원의 추징부과처분을 하고, 법인세법 제59조의2 제1항 및 같은법시행령 제124조의3 제5항의 규정에 의하여 법인이 주택을 신축하여 판매한 경우로 인정되어 과세제외되었던 1990년 귀속 법인세 특별부가세금 18,340,620원의 추징부과처분을 하였으며, 또 조세감면규제법 제74조 제1호에 의하여 국민주택의 건설용역으로서 면제되었던 1990년 구속부가가치세 제1기분 금 15,178,420원 및 제2기분 금 13,922,860원의 부과처분을 한 사실은 당사자 사이에 다툼이 없다.

2. Determination on the amount of corporate tax imposed in the year 1989

Article 62 (1) and (2) of the former Regulation on Tax Reduction and Exemption (amended by Act No. 4128 of Jun. 16, 1989) provides that if a national transfers a parcel of land to a site for construction of a house smaller than the scale of national housing under the Housing Construction Promotion Act and constructs a national housing within the period fixed by the President (3 years), capital gains tax or special surtax on income accruing from the transfer of the parcel of land shall be refunded to a national who transfers the parcel of land; however, Article 3 (1) of the Housing Construction Promotion Act and Article 30 (1) of the Enforcement Decree of the same Act provide that if the actual user fails to construct a national housing on the parcel of land, the amount of national housing shall be exempted (in case of an apartment house, the area of residence for each household shall be less than 85 square meters) and that the defendant does not use the house as a residential house at the end of 19 years on the premise that it was unlawful for the plaintiff to use it as a residential house at the end of 10 years.

According to Article 59-2 (1) of the former Corporate Tax Act (amended by Act No. 4282 of Dec. 31, 1990), and Article 124-3 (5) of the Enforcement Decree of the same Act, the tax base of special surtax is income generated from the transfer of land, buildings, etc. prescribed by the Presidential Decree, and where a house is newly constructed and sold, the land within the area calculated by multiplying the area of the house and the land appurtenant to the house by the rate (five times the land and other 10 times the land within the urban planning zone) under the following subparagraphs is excluded from the above land and the building. The house is regardless of whether it is a national housing or not, [the condominium is a corporation that does not fall under a house and sells a condominium, and it is not binding as administrative rule of the National Tax Service (No. 1264,21-1950, Jun. 15, 1982) that the above house is newly constructed and sold, and there is no evidence to acknowledge that the building area of the house was newly built and sold in the above 20000.

4. Determination on the imposition of value-added tax for the year 1990

According to Article 74 (1) 1 of the Regulation of Tax Reduction and Exemption Act, national housing and construction services of the relevant housing prescribed by the Presidential Decree shall be exempted from value-added tax. The national housing also refers to the national housing under the Housing Construction Promotion Act as recognized earlier, and the housing newly built and supplied by the Plaintiff constitutes below the national housing scale under the above Act. [In addition, the provisions of the above general provisions are limited to the case of Article 62 (1) of the above Act, and the housing exempt from value-added tax is excluded from the building which is not used for regular residence, such as villa and weekend farm house, and it is not binding as administrative rules of the National Tax Service (tax 1265,1-2394, October 23, 1979). Under the premise that the Plaintiff did not supply national housing, it is also illegal that the Defendant imposed value-added tax on the last half of 190.

5. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation is legitimate since the disposition of the above corporate tax and value-added tax against the plaintiff was unlawful, and it is so decided as per Disposition.