Open Decision Ledger · Tax & international taxation
Officetels registered as business facilities are excluded from the national housing VAT exemption
Supreme Court, Jan. 14, 2021, 2020Du43289 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 종합소득세등부과처분취소
Official text on the National Law Information Center
Question
Where an officetel lawfully meets the statutory requirements for an officetel and is registered in the building register as a business facility at the time of supply, is it a 'national housing' exempt from VAT under Article 106(1)(iv) of the Restriction of Special Taxation Act, and does later use as a residence make any difference?
Holding
It is not. Absent special circumstances, in principle the test is the building's registered use at the time of supply: because an officetel that lawfully meets the statutory requirements and is registered as a business facility may still be used as such, it cannot be treated as 'national housing' under Article 106(1)(iv) of the Restriction of Special Taxation Act whatever its size. And once the supply is excluded from the exemption on that basis, later actual use as a residence does not change the result.
Points at issue, verbatim
공급하는 건축물이 관련 법령에 따른 ‘오피스텔’의 요건을 적법하게 충족하여 공부상 ‘업무시설’로 등재된 경우, 조세특례제한법 제106조 제1항 제4호의 적용 대상이 될 수 없는 ‘오피스텔’에 해당하는지 판단하는 기준(=공급 당시 공부상 용도)
Unofficial English translation
The criterion for determining whether, where the building supplied lawfully satisfies the requirements for an "officetel" under the relevant statutes and regulations and is registered in the official registers as "office facility," it constitutes an "officetel" that cannot be subject to Article 106(1) subparagraph 4 of the Restriction on Special Taxation Act (= the use recorded in the official registers at the time of supply)
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다. 상고비용은 원고들이 부담한다.
Unofficial English translation
All appeals are dismissed. The appeal costs shall be borne by the plaintiffs.
Form of the test
Elements stated Read from the decision
원칙적으로 공급 당시의 공부상 용도를 기준으로 판단함이 타당하다.
Unofficial English translation
In principle, it is reasonable to make the determination on the basis of the use recorded in the official registers at the time of supply.
Factors
- 공급하는 건축물이 관련 법령에 따른 ‘오피스텔’의 요건을 적법하게 충족하여 공부상 ‘업무시설’로 등재된 경우
- 조세특례제한법 제106조 제1항 제4호의 적용 대상이 될 수 없는 ‘오피스텔’에 해당하는지 판단하는 기준(=공급 당시 공부상 용도)
- 공급 당시 공부상 용도가 ‘업무시설’인 ‘오피스텔’에 해당하여 위 면세조항에 따른 부가가치세 면제대상에서 제외된 건축물이 그 이후 실제로 주거 용도로 사용되고 있는 경우
Unofficial English translation
• Where the building supplied lawfully satisfies the requirements for an "officetel" under the relevant statutes and regulations and is registered in the official registers as "office facility"
• The criterion for determining whether it constitutes an "officetel" that cannot be subject to Article 106(1) subparagraph 4 of the Restriction on Special Taxation Act (= the use recorded in the official registers at the time of supply)
• Where a building excluded from the value-added tax exemption under the aforesaid tax exemption provision on the ground that it constitutes an "officetel" whose use recorded in the official registers at the time of supply was "office facility" is actually being used for residential purposes thereafter
Relation to precedent
States a new standard Read from the decision
특별한 사정이 없는 한 공급 당시 공부상 용도가 ‘업무시설’인 ‘오피스텔’은 그 규모가 주택법에 따른 국민주택 규모 이하인지 여부와 관계없이 이 사건 면세조항의 ‘국민주택’에 해당한다고 볼 수 없다.
Unofficial English translation
Unless there are special circumstances, an "officetel" whose use recorded in the official registers at the time of supply was "office facility" cannot be regarded as "national housing" under the tax exemption provision in this case, irrespective of whether its size is equal to or less than the size of national housing under the Housing Act.
Decisions referred to
해당 본문 참조
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What special circumstances, if any, could take an officetel registered as a business facility at the time of supply out of the Court's rule?
A later decision defining the 'special circumstances' the Court reserved, or an amendment to Article 106(4)(i) of the Enforcement Decree of the Restriction of Special Taxation Act on the scope of 'housing', would require this entry to be read again. So would a change in the building register entries for the units supplied, since the registered use at the time of supply decides the issue.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 6 (relation to precedent).
Axis 6 (Relation to precedent): Primary “States a new standard” vs Independent “Cannot be determined”
The primary reads the Court as setting a new test based on registered use at supply, while the independent reading could not confirm whether the holding departs from existing precedent. The judgment gives no citation to earlier cases, so either reading is possible.
특별한 사정이 없는 한 공급 당시 공부상 용도가 ‘업무시설’인 ‘오피스텔’은 그 규모가 주택법에 따른 국민주택 규모 이하인지 여부와 관계없이 이 사건 면세조항의 ‘국민주택’에 해당한다고 볼 수 없다.Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Busan High Court, in its judgment of 5 June 2020 (2019Nu24381), held that the officetels, built and approved for use as business facilities in mixed-use buildings in Busan, were not 'national housing' under Article 106(1)(iv) of the Restriction of Special Taxation Act, so the VAT assessments were lawful. It also held that there was no proper reason to excuse the VAT surtaxes, that the income from the housing sales had to be estimated with the standard expense ratio rather than the simple expense ratio because the business began in the year of sale, that house-building and selling was not a construction business entitled to the small-business tax credit under Article 7 of the former Restriction of Special Taxation Act, and that the fraudulently understated-return surtax on Plaintiff 1's 2016 comprehensive income tax was lawful.
Supreme Court standard: The Supreme Court found no error. Reading the appellate reasons against the relevant legal principles and the record, it held that the court below had not misread the law on 'national housing' under the exemption provision, on the proper reason to excuse the surtaxes, on the date the business began, on the scope of the exempted business, or on the elements of the fraudulently understated-return surtax. It also noted that the Supreme Court decisions the appellants relied on concerned different facts and were not apt, and dismissed all the appeals.
Distinguishing conditions
- A building that does not lawfully meet the statutory requirements for an officetel, or is not registered in the building register as a business facility at the time of supply.
- Special circumstances, which the Court left open by stating its rule as one that applies 'unless there are special circumstances'.
- A tax benefit under a provision of the Restriction of Special Taxation Act that expressly includes an officetel or an officetel used for residence within the term 'housing', such as Articles 95-2, 96, 97-6 or 99-2 and their Enforcement Decree provisions.
Record verification notes
Establish the registered use in the building register on the date each unit was supplied, since the Court's test is fixed at that date and later use as a residence does not alter it. Match the exemption provision actually relied on against the provisions that expressly include officetels in 'housing'. Then separate the VAT issue from the surtax, expense-ratio, tax-credit and fraudulent-return grounds, each of which the Court examined on its own terms.
From the official text
Points at issue
공급 당시 공부상 용도가 ‘업무시설’인 ‘오피스텔’이 조세특례제한법 제106조 제1항 제4호에서 부가가치세 면제대상으로 정한 ‘국민주택’에 해당하는지 여부(소극) / 공급하는 건축물이 관련 법령에 따른 ‘오피스텔’의 요건을 적법하게 충족하여 공부상 ‘업무시설’로 등재된 경우, 조세특례제한법 제106조 제1항 제4호의 적용 대상이 될 수 없는 ‘오피스텔’에 해당하는지 판단하는 기준(=공급 당시 공부상 용도) 및 공급 당시 공부상 용도가 ‘업무시설’인 ‘오피스텔’에 해당하여 위 면세조항에 따른 부가가치세 면제대상에서 제외된 건축물이 그 이후 실제로 주거 용도로 사용되고 있는 경우, 달리 보아야 하는지 여부(소극)
Unofficial English translation
Whether an "officetel," whose use recorded in the official registers at the time of supply was "office facility," falls under the "national housing" for which the value-added tax exemption is provided in Article 106(1) subparagraph 4 of the Restriction on Special Taxation Act (negative) / The criterion for determining whether, where the building supplied lawfully satisfies the requirements for an "officetel" under the relevant statutes and regulations and is registered in the official registers as "office facility," it constitutes an "officetel" that cannot be subject to Article 106(1) subparagraph 4 of the Restriction on Special Taxation Act (= the use recorded in the official registers at the time of supply), and whether the matter should be viewed differently where a building excluded from the value-added tax exemption under the aforesaid tax exemption provision on the ground that it constitutes an "officetel" whose use recorded in the official registers at the time of supply was "office facility" is actually being used for residential purposes thereafter (negative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 모두 기각한다. 상고비용은 원고들이 부담한다.
Unofficial English translation
All appeals are dismissed. The appeal costs shall be borne by the plaintiffs.
Provisions referred to
조세특례제한법 제95조의2 제1항, 제96조 제1항, 제97조의6 제1항, 제99조의2 제1항, 제106조 제1항 제4호, 조세특례제한법 시행령 제51조의2 제3항, 제95조 제2항, 제96조 제2항 제2호, 제97조의6 제2항 제1호, 제99조의2 제1항 제9호, 제106조 제4항 제1호, 구 주택법(2016. 1. 19. 법률 제13805호로 전부 개정되기 전의 것) 제2조 제1호, 제1호의2(현행 제2조 제4호 참조), 제3호(현행 제2조 제5호 참조), 구 주택법 시행령(2016. 8. 11. 대통령령 제27444호로 전부 개정되기 전의 것) 제2조의2 제4호(현행 제4조 제4호 참조), 건축법 시행령 제3조의5 [별표 1] 제14호 (나)목
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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