3자간 등기명의신탁의 경우 취득세 납세의무자: 대법원 2018. 3. 22. 선고 2014두43110 전원합의체 판결을 중심으로

Abstract

The Supreme Court en banc decision(2014du43110 rendered on March 22nd 2018) strongly argued whether, in case of a three-party title trust, the taxpayer of acquisition tax was a truster or a trustee. The majority opinion ruled that a truster is a taxpayer in order to emphasize a unified interpretation of civil and taw law. On the other hand, the dissenting opinion argued that considering the nature of the acquisition tax as a transaction or a circulation tax, the reason of the revision of the local tax law, and actual practice of registry of real estates, it was consistent with taxpayers’ recognition to regard the trustee as a taxpayer. It is meaningful that the majority and the dissenting opinion have presented a rich rationale for important issues of the acquisition tax such as the concept of acquisition under the local tax law and the timing of establishment of acquisition tax liability. The en banc decision also raises fundamental questions about how legal relationship under civil law should be recognized in scope of taxation system. The conclusion by the en banc decision is also considered reasonable in terms of preventing double or triple taxation on the same taxable event and in line with the previous Supreme Court decisions on taxpayers’ liability to acquisition tax. In this article, three principles were extracted and viewed from previous Supreme Court cases involving name trust(dummy registration) of real estate and acquisition tax payment obligations. ① First of all, the precedent cases ruled that those who are able to acquire effective ownership in relation between a party and third person are liable for the obligation to pay the acquisition taw despite the internal relationship between truster and trustee. ② Secondly, the precedent cases also concluded that if the legal relationship between two parties(for example, seller and buyer) is invalid or canceled, the person who are registered with the same title does not have an obligation to pay the acquisition tax. However, it is important to note that in the case of termination, the established obligation to pay the acquisition tax is not vanished. ③ Thirdly, even if the acquainting transaction seems to the two phrases in a formative view but just one in a substantive view, only one taxable event is recognized when it comes to acquisition tax. The conclusion of the en banc decision is also evaluated to be consistent with the above three propositions(①, ②, ③) of the Supreme Court cases. In particular, the recent Supreme Court decisions in case of name trust(2013du3078 rendered on April 24th 2018, 2015du41630 rendered on November 9th 2018) are also in line with the en banc decision. Tax laws have their own inherent purposes, so it is not necessarily recommend to follow civil law’s theories when interpreting and appling tax laws. To the extent that it does not infringe the ideology of tax law, howver, it is desirable to respect and concern substantive legal relations under civil law. In that respect, the en banc decision seems to have come to an impartial and reasonable conclusion.