신탁부동산의 양도와 부가가치세법상 납세의무자

Abstract

This paper concerns who should be the tax payer under the Value-added Tax Act among the truster, trustee and beneficiary when real estate in trust is transferred. It is the established position of the precedents of the Supreme Court of Korea that in case of trust where the truster himself receives benefits from trust, the truster should be the tax payer(principle proposition) while in case of trust where a third party beneficiary receives benefits from trust, the beneficiary should be the tax payer(exception proposition) to the extent of being covered by his preferential right to benefits. However, the Supreme Court’s position that trusts are divided into the principle proposition and the exception proposition based on who benefits from trust and that the tax payer varies thereby regardless of the type of trust is not reasonable. First of all, in case of land trust, it is difficult to view that the transfer of real estate in trust and the consignment sale are similar in terms of the fundamental aspects of the value-added tax. Therefore, the principle proposition is not reasonable to that extent. In addition, the exception proposition which regards the beneficiary as the tax payer based on the substantial taxation principle has the following problems: (i) it changes the special rule on consignment sale in the form of a deemed regulation into a demonstrative regulation; (ii) it brings about the result of establishing a regulation that the beneficiary should be the tax payer; and (iii) it does not conform to the fundamental nature of the value-added tax which is the multi-stage tax and also there are problems under the value-added tax system such as the loss of tax revenue and inefficiency, etc. Alternatively, it can be interpreted that the tax payer of the value-added tax with regard to transfer of real estate in trust should be determined based on the types of trust business in accordance with the normative structure of the provisions regarding supply of goods under Article 6 of the Value-added Tax Act. According to this structure, (i) in case of the real estate security in trust, the truster should be the tax payer based on the analogical interpretation of the special rule on security provision (Paragraph 6, Subparagraph 1), (ii) in case of the real estate disposition trust, the truster should be the tax payer, like the real estate security in trust, based on the analogical interpretation of the special rule on consignment sale (Paragraph 5), and (iii) in case of land trust, the trustee should be the tax payer in accordance with the general provision (Paragraph 1); provided, however, that such interpretation crashes into a limit in regard to real estate trust as a part of asset backed securitization. Therefore, the fundamental solution would be legislation.