신탁소득의 납세의무자에 대한 연구

The revised trust law effective from july 2012 allows new types of trusts, including business trusts, limited liability trusts and trust which issues securities, and expected to promote the use of trusts. While new types of trusts were legislated to facilitate funding through the trust, this types of trusts which are similar to the corporate system of the Commercial Code may be in competition with the corporation. However, the current income tax law which does not treat trust a separate taxable entity rules trust favorably compared with the corporation which is treated a separate taxpayer. In addition, the current income tax law provides with tax avoidance opportunities due to provisions which treat trust pass-through entity. This paper is to study whether the current provisions for trust income respond adequately to the various situations that can occur in trust, does not undermine tax neutrality and may provide tax avoidance. For this purpose, after studying the current trust law and trust taxation theory and comparing the trust taxation of US and Japan with the current trust taxation of Korea, this paper fined out the issues of the trust taxation and proposed the legisla- tive improvement. The problems of the current trust tax are pointed out. The current trust tax has a problem that there is no taxpayer in the trust whose beneficiary does not exist and has no legal basis that consignor is a taxpayer in case of trust whose beneficiary does not exist. In addition, the current trust tax treats differently a trust and a corporation which economically perform the same function, resulting in undermining the tax neutrality. The current trust tax makes double taxation of a corporate and shareholder in corporate tax avoided. This study proposed an legislative alternative of treating trust a separate taxable entity like a corporate and allowing trust to deduct amount dividend to beneficiary in taxable income. Income tax law of US treats trust a separate taxable entity and a certain types of trust whose beneficiary does not exist and which performs the same function like a corporate is classified as a corporate under income tax law of Japan. The contention that trust lacking of legal personality should be taxed as a corporation can be criticized. However, a certain types of associations without legal personality under the current tax law are classified as a corporation. The background of levying a corporate income tax on corporation is to consider not a legal personality of a corporation but the social and economic functions of corporation. In conclusion, real entity theory has no rationale in terms of tax law. It is desirable in tax neutrality and tax equity dimension to treat trust which perform the same social and economic function as a corporation as a separate taxable entity like a corporation.