부동산담보신탁의 부가가치세 납세의무자에 관한 검토- 서울고등법원 2012. 9. 6 선고 2012누2421 판결을중심으로 -

This paper discusses who should be the tax payer of the Value-addedTax when real estate in trust is transferred in reference to a court case. Thesituation of the court case was that a trustor, who owned some commercial realestate, entered into a collateral trust agreement with the real estate trustcompany (the trustee) and received a certificate of beneficial interest in return. The trustor used the certificate as collateral to the nominated bank (the primarybeneficiary) in order to get a loan for paying money of above buildings. Thetrustor defaulted the loan and the trust company sold the trust property to theprimary beneficiary paying the debts to the creditor with the proceeds. In suchtransaction of the trust property, the Tax Tribunal decided that the trustor shouldpay the value-added tax, however the high court ruling was that the primarybeneficiary should pay the tax. Tax Tribunal's decision is based on thereasoning that in the case, the collateral trust was agreed for the collateral of theloan, therefore the transfer of the practical control to the building occurs on theday of the transfer of the building ownership after paying the debt, not on theday of the trust registration. Supreme Court's decision was the establishedposition from the preceding cases that the primary beneficiary of the transfer of the trust property should be the tax payer to the extent of being covered by hisbeneficial interest in case of 'trust where a third party beneficiary receivesbenefits from trust,' while in case of 'trust where the trustor himself receivesbenefits from trust,' the trustor should be the tax payer. The high courtconcluded that the type of trust of the case is the collateral trust and 'trustwhere a third party beneficiary receives benefits from trust,' therefore the primarybeneficiary should be the tax payer. This article analyzes the decision of the Tax Tribunal and the HighCourt's judgment and raises two questions. First, the reference case in thedistrict court decision is management·disposal trust, not collateral trust in theforementioned case. The type of trust is different in character and content. Second, a certificate of beneficial interest can be issued on collateral trust, noton management·disposal trust. As the structure and type of real estate trustvaries depending on the trust goals, the decision on who should be the taxpayer in the case of the transfer of the trust property needs detailedinterpretation of the trust contract. The high court ruling gives a preview as follows : First, 'trust where thetrustor himself receives benefits from trust' exists in the collateral trust. Second,it does not conform to the fundamental nature of the value-added tax which isthe multi-stage tax. Third, trustor makes unfair profits as there is no supply ofgoods to the primary beneficiary.