2020년 개정 신탁세제에 대한 평가와 향후 과제

Abstract

While it is unfortunate that the 2011 overhaul of the Trust Act was not accompanied by an overhaul of the trust tax regime, it is commendable that the government has belatedly made significant and sensible changes to the trust tax regime in 2020. Here are some of the key issues with the 2020 revised trust tax system and areas for further improvement. First, while it is reasonable to introduce fiduciary taxation as a corporate tax system in the income tax and corporate tax trust tax system, it is wrong to give taxpayers the option of fiduciary taxation. In addition, there are legislative errors in Article 5 of the Corporate Tax Act and Article 3.2 of the Enforcement Decree of the Corporate Tax Act, which should be corrected as soon as possible. Second, while it is desirable to introduce the taxation of grantor, Article 2(3)(2) of the Income Tax Act and Article 5(3) of the Corporate Tax Act should be amended to tax the trustor rather than the trustee when there is no beneficiary or no beneficiary is specified, and the second requirement of Article 4(2)(4) of the Enforcement Decree of the Income Tax Act and Article 3(2)(2) of the Enforcement Decree of the Corporate Tax Act should be deleted. Third, the choice of the trustee as the VAT payer of the trust is consistent with the nature and jurisprudence of VAT. There are some who would like to see a return to the beneficiary taxation principle, but it is hard to argue in favor. Fourth, with respect to the taxation of a beneficiary continuity trust, the interpretation is that the entire trust estate is subject to inheritance tax upon the death of the grantor, and the entire trust estate is subject to inheritance tax upon the death of the successor beneficiary. However, from a legislative point of view, it is preferable to amend the law so that upon the death of the trustee, the successor beneficiary is liable for tax only to the extent of the beneficial interest he acquired, and the original beneficiary is liable for inheritance tax corresponding to the original beneficial interest. Fifth, in order to solve the problem of double taxation of income tax and gift tax, the timing of the transfer of beneficial interests in principle should be advanced to the date when the trust agreement becomes effective, and if this is not possible and the framework of the current regulations is maintained, Article 61 of the Enforcement Decree of the Inheritance and Gift Tax Act should be amended to deduct the “income tax equivalent” instead of the “withholding tax equivalent” when assessing trust interests.