신탁과 관련된 상속세․증여세문제와 Estate Planning 도구로서 신탁의 이용가능성

This article reviewed and summarized the basic concepts of a trust in the Revised Trust Act in Korea(“RTA”), effective July 26, 2012. In addition, this article examined tax implications related to civil trusts under the RTA, introduced frequently used trusts as estate planning tools in the United States, and analyzed whether they can be used in Korea as planning vehicles. After the foregoing reviews and analysis, this article comes to the following results：Under the RTA, no restriction with regard to the establishment of a trust by will exists. So all kinds of trusts, including a trust for beneficiary in succession and a trust with power of appointment, can be established. However, since establishment of a trust by will must comply with inheritance law, it must satisfy the conditions prescribed in the inheritance law, especially elective shares and formalities of wills. As for estate or gift tax on property transferred via a trust by will, there is no difference from transfer by will without trust. So a trust by will is not a useful estate planning tool except with respect to a charitable trust. Also, the main hindrance for a trust as an estate planning tool is that the current Estate and Gift Act(“EGA”) does not permit a marital deduction for a beneficiary share in a trust that will be (or was) obtained by a spouse. A living trust only with specified period has been frequently used, but it opens the door to a tax avoidance tool since through this kind of trust parents with higher tax rate income can divert their income to their children with lower tax rates. To prevent this practice, Korean Government has to introduce the “grantor trust rule”, as established in the United States. A living trust for will substitute whether it has fixed beneficiaries or benefi- ciaries in succession can be established under the RTA, but it also must not violate the right of the elective shares of heirs. Under the RTA, either a revocable trust or a trust with the power of appointment can be established without restriction. The EGA does not have any provision for a living trust as will substitute. Sections 9 and 33 of the EGA are applicable only to a regular living trust. So new provisions applicable to a living trust as will substitute are required. For instance, section 1 of the EGA should be revised to comprise a living trust as will substitute. Clear provisions to impose tax on a revocable trust and benefi- ciary with power of appointment should be prepared along with clear definition of revocable trust and power of appointment from a tax perspective. Among estate planning tools widely used in the United States, bypass trusts, marital trusts, charitable remainder trusts, and irrevocable life insurance trusts can be established under the RTA. From a tax perspective, irrevocable life insurance trusts and marital trusts are not available since for the former, beneficiaries concerned may be taxed and marital deductions may not be allow- able for the beneficiary in a trust. A charitable remainder trust has already been in place in Korea. A bypass trust can be a useful tool for a small estate. A dynasty trust is permissible in Korea since the RTA has no provision like the rule against perpetuity in common law. However, since the EGA does not provide a clear provision for a bypass trust or a dynasty trust, its use in Korea as an estate planning tool is still limited.