부동산 명의신탁과 실질과세원칙

Abstract

A title trust in real estate is an area where the principle of actual attributable taxation is applied, among the principle of substantial taxation, in the area of the tax law. This is because there are frequent cases of tax avoidance using a title trust in real estate. However, with the enactment of the Act on the Registration of the Real Estate under actual titleholder’s name in 1995, the agreement of title trust and the transfer of real rights accordingly were invalidated. However, title trusts in real estate do not disappear and are used for various reasons. The position that title trusts in real estate should be taxed accordingly in respect of the legal effect of private law in relation to the application of the principle of substantial taxation under the tax law, and that they can be taxed independently in the area of the tax law regardless of the legal effect of private law, are compatible. The former is the view of legal substance, and the latter is the view of economic substance. It was divided into capital gains tax, property tax or comprehensive real estate tax, and acquisition tax for each type of title trust in real estate, and reviewed which of the title trusts and title trustees is obligated to pay tax according to legal and economic substance. As a result of the review, capital gains tax, property tax, or comprehensive real estate tax must be taxed according to economic substance to maintain the principle of tax equality, while acquisition tax is reasonable to determine the taxpayer according to legal substance because it is a transaction tax or act tax.