不動産財産에 대한 納稅義務者 確定에 관한 小考 -전세권자에 대한 납세의무부여에 관한 실효성여부를 중심으로-

The property tax levied on real estate assets is one of the important tax source of municipalities, together with real estate acquisition · registration taxes. (Framework Act on Local Taxes Article 7 paragraph 2). Of course, the taxpayer is the person who has been registered as the owner (including joint ownership pursuant to Registration of real estate Act, regardless of an individual or legal entity or sole ownership or joint ownership pursuant to current laws in force. (Registration of real estate Act Article 63, Local Tax Act Article 107 paragraph 1). And meanwhile, as real estate registration system is based on the regime of application by the concerned party as the universal principal in common with all other registration systems, the tax system leaves room for applying principle of substantial taxation in case the owner on public registry is different from the actual owner, in consideration of such principle. (Registration of real estate Act Article 22, Local Tax Act Article 107 paragraph 2), This is regarded as because the system is based on the fair taxation principle purposed for realization of taxation justice. However, it is questionable occasionally to assert whether the principle of equity and fair taxation is properly observed, relying only on current designatio system of property tax taxpayer on real estate asset that determines the responsible party for tax payment based on the ownership thereof, whether nominal or actual. This is an issue related to the lease with deposit system as a kind of real estate lease contract types. According to existing laws, depositing tenant is free from the property tax liability on the relevant real estate property, while only the owner thereof (including joint owner and substantial owner, the same applies hereafter) is designated as the taxpayer on the relevant property tax. In the holistic perspective on the system, this situation is regarded as because current legal system was designed to deem the depositing tenant as the weaker party and protect the tenant vis-a-vis the owner in lease with deposit system, though the tenant is entitled to enjoy the benefit of directly utilizing the relevant real estate asset. But this system provides fodder to controversies in current economic phenomenon, in that the tenants are not necessarily the weaker party. In other words, according to the press reports, real estate owners are deemed as not in the stronger party status any more, and tenants are not in weaker position uniformly in all occasions. Rather, in some cases, some tenants opt to remain as depositing tenant, without acquiring real estate, for the purpose of avoiding tax and enjoying other systemic benefit despite of economically enough capacity to own real estate. Also, recently the cases are occurring whereby depositing lease system is misused as the tax avoidance in inheritance tax system. As such, there are cases whereby a person avoids becoming owner of real estate to enjoy the benefit of depositing tenant status, meanwhile in the opposite cases a person owning property right in depositing tenant status is disadvantaged due to the low credit status due to the tenancy of property in lease deposit. All these side effects are assessed as based on the fact that tax laws cannot meet the demands of the times to reflect the changes on legislation policies, remaining on the old practice despite of the tax laws characteristics of government policy. And the aftereffect thereof leaves room for further problems on fair taxation and inconsistency with principle of substantial taxationIn this regard, this study firstly reviews what effect the depositing lease system is exercising to Korean real estate policy. Secondly, before trying any legislation or proposing policy, this study further reviews whether it would be feasible to include depositing tenants in the taxpayer group liable for real estate property tax in designation of the principal party liable therefor under current legal system, as well as the effect of such determination, if realized, to activation policy for real estate transactions. And for policy or legislative efforts, this study pursues two-tiered legislation or policy conception by categorizing depositing tenants based on the deposit to value ratio of relevant real estate property and then excluding tenants at properties of less than a certain size from taxpayer designation without any change from current legislation, or selectively including tenants in taxpayer group, mandatorily forcing tenants at a property above certain size to included in addition to existing taxpayer group, ruling out uniform designation of all depositing tenants as property taxpayer in consideration systemic supplementation for protection of weaker party.