소유권취득조건부 선체용선계약과 취득세 부담주체 (대법원 2011. 4. 14. 선고 2008두10591 판결)

Abstract

There are some legal issues concerning characteristics of the bareboat charter with hire purchase option(hereunder, BBCHP) because the formal ownership of the chartered vessel remains to the owner of the chartered vessel, however the charterers of the vessel exclusively uses and possesses chartered vessel without intervention of the owner of the vessel. The case can be much more complicated if the chartered vessel is formally bareboat chartered by the subsidiary company established in a country where the vessel would be registered with purpose of owning the vessel, but the subsidiary is substantially under the complete control of the parent company. Especially a keen legal problem emerges who is obliged to pay the acquisition tax with the BBCHP. Even if there are several different views with the legal characteristic of the BBCHP, it is the bareboat charterer who has to pay the aquision tax because under the BBCHP the whole and exclusive control of the vessel transfers to the charterer during the charter period. Meanwhile the doctrine of piercing the corporate veil shall not be applied to the taxation law because the taxation law requires every provision of the law which obliges its citizens to pay tax must be stipulated clearly without doubt and must be provided with the form of statute in advance. However, the term of “substantial” or “actual” with interpretation of the principle of actual taxation shall be understood as economic substantialities. In a recent case the Korean Supreme Court’s ruled that the controlling parents company shall pay the acquisition tax when the subsidiary has no assets and its own manpower, but only serves its parents company with purpose of BBCHP. Considering the legal meaning of the principle of actual taxation, in writer’s opinion, the Korean Supreme Court’s ruling is legally correct and highly applaudable.