신탁관계에 있어서의 부가가치세 납세의무자 - 대법원 2017. 5. 18. 선고 2012두22485 전원합의체 판결 -

Abstract

The Supreme Court of Korea, 2017. 5. 18. sentenced that the tax payment obligor in trust has to be a trustee(the Judgement of 2017. 5.). Before that judgement, a truster or a beneficiary have been recognized as the tax payment obligors by the Supreme Court. However, under such old sentences, lots of problems were happened. The most important problem was that Government cannot seize and execute trusted estate. That kind of problems have occurred in other kind of taxes including the Estate Tax and the Deemed Acquisition Tax. In case of the Estate Tax, such problem could be solved by revision of the Local Tax Act which switched the payment obligor from truster to trustee. In case of the Deemed Acquisition tax, the Supreme Court recognize trustee as the tax payment obligator. the reason of such recognition would be same with the Judgement of 2017. 5. Even though the reason for the Judgement of 2017. 5. that the object of taxation will be "transaction itself" is not persuasive, the conclusion that the tax payment obligors are trustees regardless of trust type has to be highly appreciated on the fact that the principle of Priority of National Taxes and the principle of Substantial Taxation could be revived through that judgement.. However, there could be some side effects in the Judgement of 2017. 5. including (1) truster can be uncooperative to the fufillment of tax obligation, and (2) the property of truster cannot be seized and executed under the Judgement of 2017. 5. Under above mentioned circumstances, government suggest a plan to revise the Value Added Tax Law. In according to that plan, the tax payment obligator will be trustees, instead of that, the trusted estate could be seized by government. However such plan has several problems. Therefore, this thesis suggest that (1) the tax payment obligator has to be trustee as in the Judgement of 2017. 5. (2), the liability of trustee has to be limited to trusted estate, and (3) trustors or a beneficiaries have joint and several obligation for tax liability of trustee.