2013Na13058 Agreements, etc.

A

B Regional Housing Association

Changwon District Court Decision 2013Da5663 decided October 18, 2013

July 23, 2014

November 19, 2014

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purpose of appeal and appeal

The defendant shall pay to the plaintiff 36,078,80 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment (the plaintiff has reduced the purport of the claim in the trial).

Purport of appeal

The judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiff 39,686,680 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

A. The Defendant is a regional housing association established on October 25, 2012 with the authorization to establish a housing association on October 25, 2012 in order to carry out a construction project of multi-family housing under the Housing Act (hereinafter the instant project) in Suwon-gu, Busan. The Plaintiff is the owner of a building located in the project site of this case (hereinafter “instant real estate”).

B. On May 28, 2011, the Plaintiff sold the instant real estate to SPS Partnership Co., Ltd. (hereinafter “SPS”) for KRW 360 million, and the transfer income tax was stipulated under the first sales contract to be borne by SPS Partners (hereinafter “First sales contract”).

C. On May 28, 2011, the Plaintiff received down payment of KRW 360 million pursuant to the First Sales Contract from the lute Partners.

D. On December 10, 2012, the Plaintiff sold the instant real estate to the Defendant in KRW 356,473,199 (hereinafter “the second sales contract”).

E. On April 10, 2013, the Plaintiff received full payment from the Defendant, and completed the registration of ownership of the instant real estate on April 10, 2013.

F. Since then, KRW 36,078,800 was imposed on the Plaintiff.

(In the absence of dispute, entry of Gap's 1 through 3, 5, Eul's 1 and 2, and all pleadings)

2. The parties' assertion

Pursuant to the first sale and purchase agreement, the U.S.P. partner agreed to bear the transfer income tax at the time of the conclusion of the first sale and purchase agreement, and the Defendant succeeded to the rights and obligations of the U.S. partner, and thus, is obligated to pay the Plaintiff the transfer income tax of KRW 36,078,800 and the damages for delay.

B. Defendant’s assertion

The defendant did not have succeeded to the rights and obligations under the First Sales Contract of the United States Trade Partners, and it did not have any obligation to respond to the plaintiff's claims since the plaintiff entered into the Second Sales Contract with the plaintiff as a separate one and all obligations under the Second Sales Contract.

3. Whether the defendant is obligated to bear capital gains tax

Even if the Defendant succeeded to the status of purchaser under the 1st sales contract of SP Partners, in light of the following circumstances, which can be acknowledged by comprehensively taking account of the entries of evidence No. 2 and the purport of the entire pleadings, the Plaintiff and the Defendant appears to have concluded a 2 sales contract to include transfer income tax to be generated in the purchase price. The evidence submitted by the Plaintiff alone is insufficient to recognize that the Defendant was liable to pay transfer income tax in addition to the purchase price stipulated in the 2 sales contract, so the Plaintiff’

A. The Plaintiff entered into a sales contract with the Defendant for the second sale and purchase of KRW 356,473,199, plus KRW 32,473,199, as stated in the sales contract for the second sale and purchase of the remainder of KRW 32,400,000,000,000,000.

The amount increased.

B. The Plaintiff did not return the down payment of KRW 36 million received from e.g., U.S. business partnership pursuant to the first sales contract, and the e.g., U.S. business partnership or the Defendant did not demand the Plaintiff to return the said money.

C. The Plaintiff’s money received through the 1st and the 2nd sales contract is both KRW 392,473,199 (i.e., down payment KRW 36,00,00 according to the 1st sales contract + KRW 356,473,199 according to the 2nd sales contract). The said money is deemed to have been paid KRW 32,473,199, more than KRW 360,000 under the 1st sales contract. The said money is deemed to have been calculated in advance and reflected in the sales amount at the time of concluding the 2 sales contract.

D. As capital gains tax was imposed on the Plaintiff in KRW 36,078,80, the Plaintiff received capital gains tax of KRW 3,605,60 (i.e., capital gains tax of KRW 36,078,80 - increased sales amount of KRW 32,473,199) more substantially than the amount to be paid by the Plaintiff according to the first sale contract. However, it is deemed that there was an erroneous calculation of capital gains tax to be paid in the future at the time of the conclusion of the second sale contract or any change in circumstances thereafter.

E. It seems that the second sales contract does not state the fact that the Defendant separately bears the transfer income tax, and that the Plaintiff received KRW 356,473,199 from the Defendant and completed the registration of ownership transfer of the instant real estate under the second sales contract is due to the fact that the Plaintiff already reflected the transfer income tax to be borne by the Defendant according to the first sales contract as above in the purchase price under the second sales contract.

4.In conclusion

The plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is with the same conclusion.

Therefore, the plaintiff's appeal is just and is therefore dismissed as per Disposition.

Judges Kim Jong-soo

Judges Kang Jin-woo

Judges Shin Jae-young