Open Decision Ledger · Tax & international taxation
Residential officetel within 'residential building' in the 2017 expense ratio notice
Supreme Court, Feb. 26, 2026, 2024Du42963 (judgment)
Case name: 종합소득세부과처분취소[주거용 오피스텔의 신축·판매로 인한 사업소득금액을 추계할 때 적용되는 업종별 경비율이 무엇인지가 문제 된 사건]
Official text on the National Law Information Center
Question
Does the term 'residential building' in 'residential building development and supply business (land held for less than five years)' (industry code 451102) of the 2017 expense ratio notice include an officetel whose structure is fit for dwelling from the time it was built and supplied and which can actually be used as a dwelling?
Holding
Yes. Measured against the former Income Tax Act, its Enforcement Decree and the ninth Korean Standard Industrial Classification, 'residential building' in industry code 451102 is a term wide enough to cover an officetel that was fit for dwelling by its structure from the time it was built and supplied and that can actually be used as a dwelling. It is not confined to a house whose use is recorded as residential in the building register under the Building Act or in the land register under the Real Rights Registration Act, which is a house within Article 2(1) of the Housing Act. The Supreme Court found no error in the judgment below and dismissed the defendant's appeal, with the costs on it.
Summary of the holding, verbatim
2017년 귀속 경비율 고시의 ‘주거용 건물개발공급업(토지보유 5년 미만)’(업종코드: 451102)에서 말하는 ‘주거용 건물’은 신축 및 공급이 이루어질 당시부터 건축물의 구조 등이 주거에 적합하여 실제 주거용으로 사용될 수 있는 오피스텔까지 포함하는 용어로 이해될 뿐
Unofficial English translation
The term "residential building" as used in "Residential Building Development and Supply Business (Land Held for Less Than 5 Years)" (Business Code: 451102) of the 2017 Expense Ratio Notice is a term understood to include even officetels whose building structure, etc. is suitable for residential use and which can actually be used for residential purposes from the time of new construction and supply
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다. 상고비용은 피고가 부담한다.
Unofficial English translation
All appeals are dismissed. The defendant shall bear the costs of final appeal.
Form of the test
Elements stated Stated in the decision
건축법에 따른 건축물대장 등이나 부동산등기법에 따른 등기부에 용도가 주택으로 기재된 주택법 제2조 제1호에서 정한 주택으로만 한정된다고 볼 수 없다.
Unofficial English translation
cannot be regarded as limited to the housing defined in Article 2, subparagraph 1 of the Housing Act for which the purpose is entered as housing in the building register, etc. under the Building Act or in the register under the Registration of Real Estate Act.
Factors
- 신축 및 공급이 이루어질 당시부터 건축물의 구조 등이 주거에 적합하여 실제 주거용으로 사용될 수 있는
- ‘주거용 건물개발공급업(토지보유 5년 미만)’(업종코드: 451102)에서 말하는 ‘주거용 건물’
- 건축법에 따른 건축물대장 등이나 부동산등기법에 따른 등기부에 용도가 주택으로 기재된 주택법 제2조 제1호에서 정한 주택으로만 한정된다고 볼 수 없다.
Unofficial English translation
• whose building structure, etc. is suitable for residential use and which can actually be used for residential purposes from the time of new construction and supply
• the "residential building" as used in "Residential Building Development and Supply Business (Land Held for Less Than 5 Years)" (Business Code: 451102)
• cannot be regarded as limited to the housing defined in Article 2, subparagraph 1 of the Housing Act for which the purpose is entered as housing in the building register, etc. under the Building Act or in the register under the Registration of Real Estate Act.
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2013. 1. 16. 선고 2011두12856 판결 참조
Unofficial English translation
See Supreme Court Decision 2011Du12856 decided January 16, 2013.
Decisions referred to
해당 본문 참조
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If an officetel whose structure is fit for dwelling is supplied as such but is afterwards used for business, does it still count as a residential building for the expense ratio of the tax period in which it was sold?
A later decision that reads actual use, rather than the capacity for residential use fixed by the structure at construction and supply, as decisive would change this entry. So would an amendment to the expense ratio notice, to the ninth Korean Standard Industrial Classification's treatment of 'residential building', or to the definition of a quasi-house in Article 2 of the Housing Act, since the reasons rest in part on that definition and on the policy change behind it.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 6 (relation to precedent), axis 8 (open question and revisit condition).
Axis 6 (Relation to precedent): Primary “Follows earlier decisions” vs Independent “Cannot be determined”
The primary reading marks the judgment as following existing precedent, while the independent reading could not confirm a precedent relationship, since the holding cites statutes and the industry classification but no prior decision.
대법원 2013. 1. 16. 선고 2011두12856 판결 참조Axis 8 (Open question and revisit condition): Primary “If an officetel whose structure is fit for dwelling is supplied as such but is afterwards used for business, does it still count as a residential building for the expense ratio of the tax period in which it was sold?” vs Independent “What degree of structural suitability is required for an officetel to qualify as capable of actual residential use at the time of construction and supply?”
The primary reading asks whether an officetel supplied as residential but later used for business still counts for the tax period of sale, while the independent reading asks how much structural suitability is required at construction.
2017년 귀속 경비율 고시의 ‘주거용 건물개발공급업(토지보유 5년 미만)’(업종코드: 451102)에서 말하는 ‘주거용 건물’은 신축 및 공급이 이루어질 당시부터 건축물의 구조 등이 주거에 적합하여 실제 주거용으로 사용될 수 있는 오피스텔까지 포함하는 용어로 이해될 뿐Raw 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 3 May 2024 (2023Nu56752), held that 'residential building' in 'residential building development and supply business' had to be read within the range of its wording, so it could not be narrowed to a house that was built for dwelling from the start and whose recorded use is also residential, that is, a house under the Housing Act. It also held that such a narrowing would conflict with the Korean Standard Industrial Classification, which treats housing development and supply as one kind of residential building development and supply, and that the plaintiffs' officetels had to be classified as 'residential buildings'. The assessment applying the non-residential expense ratio was therefore unlawful and had to be cancelled.
Supreme Court standard: The Supreme Court found no error. It set out the reasons at length: 'residential building' is a term covering buildings used for dwelling, the same notice uses 'house' and 'residential building' as distinct terms, the Korean Standard Industrial Classification uses 'residential building' as a term grounded in the objective and economic substance of the production activity and product rather than in the Housing Act or public records, and in the light of the change in government policy, an officetel built and supplied as a dwelling keeps the character of a residential building. It therefore held the court below's classification correct and dismissed the appeal, the Justices being unanimous.
Distinguishing conditions
- An officetel whose structure and fittings were not fit for dwelling from the time it was built and supplied, since the Court relied on fitness for dwelling existing at that point.
- An officetel that was not built and supplied as a dwelling from the outset and is only afterwards used as one, since the Court's rule turns on the building being fit for dwelling when it was built and supplied.
- A building bought and resold, since the 2017 notice itself states that the residential building development and supply business excludes the resale of purchased residential buildings.
Record verification notes
Set the transaction against the industry codes before relying on this decision: code 451102 covers a developer who contracts out the whole building construction work and sells, while codes 703021 and 703023 are expressly aimed at non-residential buildings, and the book's general application rules send classification to the ninth Korean Standard Industrial Classification unless a provision says otherwise. Then look at the officetel's own record: when it was built and supplied, whether its structure and spaces were fit for dwelling, and whether it can actually be used as a dwelling. Finally confirm which version of the expense ratio notice and which version of the Income Tax Act and its Enforcement Decree governed the tax period, as this decision applied the former versions.
From the official text
Points at issue
국세청 고시인 2017년 귀속 경비율 고시의 ‘주거용 건물개발공급업(토지보유 5년 미만)’(업종코드: 451102)에서 말하는 ‘주거용 건물’이 신축 및 공급이 이루어질 당시부터 건축물의 구조 등이 주거에 적합하여 실제 주거용으로 사용될 수 있는 오피스텔까지 포함하는지 여부(적극)
Unofficial English translation
Whether the term "residential building" as used in "Residential Building Development and Supply Business (Land Held for Less Than 5 Years)" (Business Code: 451102) of the 2017 Expense Ratio Notice issued by the National Tax Service includes even officetels whose building structure, etc. is suitable for residential use and which can actually be used for residential purposes from the time of new construction and supply (affirmative)
Summary of the holding
구 소득세법(2017. 12. 19. 법률 제15225호로 개정되기 전의 것) 제19조 제1항 제6호, 제12호, 제3항, 제80조 제3항, 구 소득세법 시행령(2018. 2. 13. 대통령령 제28637호로 개정되기 전의 것) 제143조, 제145조 및 제9차 한국표준산업분류의 규정에 비추어 보면, 2017년 귀속 경비율 고시의 ‘주거용 건물개발공급업(토지보유 5년 미만)’(업종코드: 451102)에서 말하는 ‘주거용 건물’은 신축 및 공급이 이루어질 당시부터 건축물의 구조 등이 주거에 적합하여 실제 주거용으로 사용될 수 있는 오피스텔까지 포함하는 용어로 이해될 뿐, 건축법에 따른 건축물대장 등이나 부동산등기법에 따른 등기부에 용도가 주택으로 기재된 주택법 제2조 제1호에서 정한 주택으로만 한정된다고 볼 수 없다.
Order
상고를 모두 기각한다. 상고비용은 피고가 부담한다.
Unofficial English translation
All appeals are dismissed. The defendant shall bear the costs of final appeal.
Provisions referred to
구 소득세법(2017. 12. 19. 법률 제15225호로 개정되기 전의 것) 제19조 제1항 제6호, 제12호, 제3항, 제80조 제3항, 구 소득세법 시행령(2018. 2. 13. 대통령령 제28637호로 개정되기 전의 것) 제143조, 제145조
Read 2026-10-24 · Cross-read 2026-10-24. 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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