Open Decision Ledger · Tax & international taxation
Registered use decides whether an officetel is exempt national housing
Supreme Court, Jan. 28, 2021, 2020Du44725 (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: 부가가치세부과처분취소등
Official text on the National Law Information Center
Question
Where an officetel satisfied the statutory requirements and was registered as a business facility at the time of supply, was it nonetheless within the national housing exempt from value-added tax by Article 106(1)(iv) of the Restriction of Special Taxation Act because it was designed and actually used for residence, and was the taxpayers' mistaken reading of that exemption a justified reason excusing the surcharge?
Holding
No to both. Absent special circumstances, an officetel whose registered use at the time of supply was a business facility cannot be regarded as the national housing exempt from value-added tax under Article 106(1)(iv) of the Restriction of Special Taxation Act, whatever its size and however it is actually used afterwards. Where no genuine divergence of view in tax interpretation exists, a taxpayer's own reading that the duty was excused is mere ignorance or mistake of law and does not excuse the failure to file and pay, and the Court found no error in the comprehensive income tax rulings below either.
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) 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
The criterion for determining whether a building supplied falls within the category of "officetel" that cannot be subject to Article 106, paragraph (1), subparagraph 4 of the Restriction on Special Taxation Act where the supplied building lawfully satisfies the requirements for an "officetel" under the relevant statutes and regulations and is registered in the building register as "business facility" (= registered use at the time of supply), and whether a different view should be taken where the building falls within the category of "officetel" whose registered use at the time of supply was "business facility" and is therefore excluded from the value-added tax exemption under the above tax exemption provision, but the building is thereafter actually used for residential purposes (negative)
Disposition
Partly reversed and remanded Stated in the decision
원심판결 중 피고 북인천세무서장 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 원고들의 상고를 모두 기각한다. 원고 1, 원고 4와 피고 분당세무서장 사이에서 생긴 상고비용은 위 원고들이 부담한다.
Unofficial English translation
The part of the judgment of the court below in which the defendant, Head of the Bukincheon Tax Office, lost is reversed, and this part of the case is remanded to the Seoul High Court. All appeals of the plaintiffs are dismissed. The costs of the final appeal incurred between Plaintiff 1 and Plaintiff 4, on the one hand, and the defendant, Head of the Bundang Tax Office, on the other hand, shall be borne by the said plaintiffs.
Form of the test
Elements stated Stated in the decision
위와 같은 경우 이 사건 면세조항의 적용대상이 될 수 없는 ‘오피스텔’에 해당하는지 여부는 원칙적으로 공급 당시의 공부상 용도를 기준으로 판단함이 타당하다.
Unofficial English translation
In a case such as this, it is reasonable to determine, in principle, on the basis of the registered use at the time of supply whether it falls within the category of "officetel" that cannot be subject to the tax exemption provision in this case.
Factors
- 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)
- 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)
- 납세의무자에게 그 의무를 게을리한 점을 탓할 수 없는 정당한 사유가 있는 경우, 세법상 가산세를 부과할 수 있는지 여부(소극)
- 세법해석상 의의로 인한 견해의 대립 등이 있다고 할 수 없음에도 납세의무자가 자기 나름의 해석에 의하여 납세 등의 의무가 면제된다고 잘못 판단한 경우, 의무 위반을 탓할 수 없는 정당한 사유에 해당하는지 여부(소극)
Unofficial English translation
• Whether an "officetel" whose registered use at the time of supply was "business facility" falls within the category of "national housing" designated as subject to value-added tax exemption under Article 106, paragraph (1), subparagraph 4 of the Restriction on Special Taxation Act (negative)
• The criterion for determining whether a building supplied falls within the category of "officetel" that cannot be subject to Article 106, paragraph (1), subparagraph 4 of the Restriction on Special Taxation Act where the supplied building lawfully satisfies the requirements for an "officetel" under the relevant statutes and regulations and is registered in the building register as "business facility" (= registered use at the time of supply)
• Whether a different view should be taken where the building falls within the category of "officetel" whose registered use at the time of supply was "business facility" and is therefore excluded from the value-added tax exemption under the above tax exemption provision, but the building is thereafter actually used for residential purposes (negative)
• Whether an additional tax under the tax Acts may be imposed where there is a justifiable ground for which the taxpayer cannot be blamed for neglecting the duty (negative)
• Whether it falls within a justifiable ground for which the violation of the duty cannot be blamed where the taxpayer erroneously judged, on the basis of his own interpretation, that the duty to pay tax and the like was exempted, even though there cannot be said to be a divergence of views arising from a question in the interpretation of the tax Acts or the like (negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2013. 6. 27. 선고 2011두17776 판결
Unofficial English translation
Supreme Court Decision 2011Du17776 decided June 27, 2013
Decisions referred to
[2] 대법원 2013. 6. 27. 선고 2011두17776 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What circumstances would be special enough to displace the registered-use test for an officetel whose registered use at the time of supply was a business facility?
The judgment of the Seoul High Court on remand will show whether any special circumstances were proved and how the registered-use test is applied on these facts. Any amendment to Article 106(1)(iv) of the Restriction of Special Taxation Act, Article 106(4)(i) of its Enforcement Decree, or the Housing Act and its Decree on the definition of quasi-housing and officetel would call for a fresh reading.
Cross-family AI independent reading & axis check
8 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 all 8 axes.
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 Seoul High Court, in its judgment of 18 June 2020 (2018Nu78185), held that whether an officetel falls within the exempt national housing must be judged by its actual use. It found that the 24 officetel units of Building A, sold in the first value-added tax period of 2014, and the 29 officetel units of Building B, sold in the first value-added tax period of 2015, had been designed and built for residential use, were actually used for residence, and were within the national housing size, so the value-added tax assessments, being the amounts including surcharge of KRW 343,903,230 each for Plaintiffs 1 and 3 and KRW 356,191,320 each for Plaintiffs 2 and 4, were unlawful. It also held that the taxpayers had a justified reason for the value-added tax surcharge, while rejecting their claim that the simple expense ratio should have been applied to the comprehensive income tax.
Supreme Court standard: The Supreme Court held that the texts and structure of the provisions point the other way: an officetel is an office facility distinct from a single or collective dwelling, and the decree made under the exemption says only housing, whereas other decrees under the same Act expressly include officetels or officetels used for residence. It therefore reversed the part of the judgment adverse to the Head of the North Incheon Tax Office and remanded the case to the Seoul High Court. On the surcharge it held that the inconsistent decisions of the Office of Tax Tribunal before its joint conference decision of 20 December 2017 did not amount to a genuine divergence in tax interpretation, while the National Tax Service appears to have consistently expressed the opposite public view through precedents and written replies, and the taxpayers had not even sought an answer, so their mistake was bare ignorance or error of law; it dismissed all of the taxpayers' appeals and found no error in the income tax rulings either.
Distinguishing conditions
- An officetel that did not lawfully satisfy the statutory requirements for an officetel, or that was not registered as a business facility at the time of supply, since the rule turns on that registration.
- A case with special circumstances in which the registered use at the time of supply must be displaced, since the Court said absent special circumstances.
- A taxpayer who could show a genuine divergence in tax interpretation, or that expecting compliance was unreasonable, since the excuse turns on such circumstances.
Record verification notes
Read the building register as it stood at the time of supply for each unit against the statutory requirements for an officetel, since the exemption turns on the registered use at that date rather than later use. Then set the tax guidance actually available to the taxpayer against the decisions of the Office of Tax Tribunal relied on, noting that the joint conference decision of 20 December 2017 came later, and look for any inquiry sent to the National Tax Service. On the income tax side, confirm the date the business began, here treated as the point when housing sales began, and the thresholds of KRW 36 million and KRW 150 million under Article 143(4) of the former Enforcement Decree of the Income Tax Act.
From the official text
Points at issue
[1] 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) [2] 납세의무자에게 그 의무를 게을리한 점을 탓할 수 없는 정당한 사유가 있는 경우, 세법상 가산세를 부과할 수 있는지 여부(소극) 및 세법해석상 의의로 인한 견해의 대립 등이 있다고 할 수 없음에도 납세의무자가 자기 나름의 해석에 의하여 납세 등의 의무가 면제된다고 잘못 판단한 경우, 의무 위반을 탓할 수 없는 정당한 사유에 해당하는지 여부(소극)
Unofficial English translation
[1] Whether an "officetel" whose registered use at the time of supply was "business facility" falls within the category of "national housing" designated as subject to value-added tax exemption under Article 106, paragraph (1), subparagraph 4 of the Restriction on Special Taxation Act (negative) / The criterion for determining whether a building supplied falls within the category of "officetel" that cannot be subject to Article 106, paragraph (1), subparagraph 4 of the Restriction on Special Taxation Act where the supplied building lawfully satisfies the requirements for an "officetel" under the relevant statutes and regulations and is registered in the building register as "business facility" (= registered use at the time of supply), and whether a different view should be taken where the building falls within the category of "officetel" whose registered use at the time of supply was "business facility" and is therefore excluded from the value-added tax exemption under the above tax exemption provision, but the building is thereafter actually used for residential purposes (negative) [2] Whether an additional tax under the tax Acts may be imposed where there is a justifiable ground for which the taxpayer cannot be blamed for neglecting the duty (negative), and whether it falls within a justifiable ground for which the violation of the duty cannot be blamed where the taxpayer erroneously judged, on the basis of his own interpretation, that the duty to pay tax and the like was exempted, even though there cannot be said to be a divergence of views arising from a question in the interpretation of the tax Acts or the like (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
원심판결 중 피고 북인천세무서장 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다. 원고들의 상고를 모두 기각한다. 원고 1, 원고 4와 피고 분당세무서장 사이에서 생긴 상고비용은 위 원고들이 부담한다.
Unofficial English translation
The part of the judgment of the court below in which the defendant, Head of the Bukincheon Tax Office, lost is reversed, and this part of the case is remanded to the Seoul High Court. All appeals of the plaintiffs are dismissed. The costs of the final appeal incurred between Plaintiff 1 and Plaintiff 4, on the one hand, and the defendant, Head of the Bundang Tax Office, on the other hand, shall be borne by the said plaintiffs.
Provisions referred to
[1] 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 [2] 국세기본법 제47조 제1항
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