신탁부동산의 관리ㆍ처분과 부가가치세 납세의무자 - 대법원 2017. 5. 18. 선고 2012두22485 전원합의체 판결 -

Abstract

Prior to the Supreme Court Decision 2012Du22485 Decided May 18, 2017, the person liable to pay value-added tax was determined by applying Value Added Tax Act Article 6.5 (now Article 10.7) on consignors: in case of trust where the truster himself receives benefits from trust (settlor-beneficiary trust), the truster was regarded as the tax payer, and in case of trust where a third party beneficiary receives benefits from trust, the beneficiary became the tax payer. The Supreme Court Decision at hand overruled the precedents and declared that, since the trustee is the supplier of goods and services when managing and disposing of the trust assets, the trustee should be the person liable to pay value-added tax. The decision is reasonable in consideration of the nature of value-added tax: the principle of trust that the trustee holds the rights and obligations of the trust assets, and how the supply of goods and services itself is the object of value- added taxation. Pursuant to the change in the Supreme Court Decision, the existing taxation practice and established rules of the National Tax Service, based on the premise that the truster and the beneficiary were obligated to pay the tax, faces major revisions. However, in order to prevent any confusion due to the change in court decision and authoritative interpretation, and any legal instabilities, a clear and precise regulation in relation to trust must promptly be adopted in the Value Added Tax Act. The following points must be taken into consideration when amending the Value Added Tax Act: First, the truster must be jointly liable for tax, so that tax authorities may secure tax claims and that trust assets are independent, therefore balancing the interests of trustee, other trusters and beneficiaries. Legislative supplements to protect trustee and other truster by limiting the scope of liability to trust asset in case of value-added tax arrears are also needed. Second, in case of land trust or land development trust, business registration either by each trust business or in joint with the truster should be made possible, providing legislative solution to problems related to input tax deductions.