신탁부동산의 매각에 따른 부가가치세 납세의무자

One of the tax issues related to real estate trusts under the Value Added Tax Act (“VAT Act”) is who is responsible for paying taxes when a real estate trust transfers, sells or disposes of its trust asset. The current VAT Act has no specific provisions on the trust related transactions. However, the Supreme Court has held that, in a transaction where a trustee sells, transfers or disposes of its trust property, the responsible taxpayer is the grantor if the grantor is the same as the beneficiary and the beneficiary if the grantor is different from the beneficiary. In sum, the Supreme Court case suggests that the beneficiary of a trust is respon- sible for payment of taxes relying on the provision on sale by consignment under the VAT Act. The National Tax Service also follows such case precedent in levying value-added taxes on trusts. Nevertheless, the foregoing Supreme Court case is problematic, because of the following reasons：i) it interprets taxpayer of real estate trusts based on the sale by consignment provision of the VAT Act too broadly defying the basic principle of tax interpretation which prohibits making analogies and expanded interpretation；ii) it is not in line with the current invoice method that the VAT Act adopts since the grantor does not pay for value-added taxes which arose during his holding period if the grantor is different from the beneficiary；iii) it may provide a loophole to evade value-added taxes for such beneficiaries who do not engage in businesses；iv) it is difficult to identify the responsible taxpayer in a case where there are more than one beneficiaries；and v) it does not conform to the acquisition tax law which provides that the trustee is responsible for the payment of acquisition taxes imposed on the relevant trust. In order to address these issues, legislative supplementation is essential. In determining the responsible taxpayer for a trust, trusts should not be considered based on whether the grantor and the beneficiary are the same or different, but based on their types (e.g., collateral trust, disposition trust, land development trust etc.). If so, the taxpayer can be determined to be the grantor in a collateral or disposition trust under invoice method and the trustee in a land development trust. Such method, however, may cause confusion to taxpayers and may be difficult to apply in case of a new type of trust. In this regard, in order to resolve the aforesaid issues with the Supreme Court precedent, it would be necessary to amend the VAT Act by making an act of entrustment of trust assets as a taxable transactions in light of the fact that the trusts share similarities with entities under the Commercial Code and the beneficiary rights are trans- ferrable.