신탁 관련 거래와 부가가치세

This article discusses how to determine which trust-related transactions are taxable with value-added tax and which party is liable to pay value-added tax. To this end, the article first analyzes how value-added taxes are imposed on trust-related transactions, identifies a number of issues with the legislation and the interpretation thereof, and finally proposes reasonable alternatives. With this, the Value-Added Tax Act and subordinate statute currently in place does not contain any provision regulating specifically trust transactions. This caused the taxation of trust transactions to be subject to the interpretation of the statutes. Here, the mainstream of the Supreme Court judgement has been consistent in that the party liable for value-added tax is determined by looking into to whom the profit and expenses generated from the trust revert. Administrative interpretation, which has taken the concept of actual control, consider it as basis of judgement. However, such a interpretation is not justifiable as it can not be proved by an analogical application of the provisions on commission sales or by the principle of actual taxation. In a transaction between a trustee and a third party, the actual party of the transaction is the trustee, not the trustor. Therefore, the party liable to pay value-added tax under the Value-Added Tax Act should be the trustee. With this, some may question the validity of the alternative interpretation, pointing out that such interpretation would only disrupt the existing order established by the mainstream interpretation which has formed by the Supreme Court judgement and administrative interpretation and practices. However, unreasonable interpretations and practices must be corrected if we are to streamline our taxation system. Although it would be a stretch to maintain that the current Value-Added Tax Act and subordinate statute is in error, it might be a viable approach to introduce a provision that clarifies how trust-related transactions should be taxed. Holding the beneficiary liable for tax payment be another viable option, considering the need for consistency with taxation on income. This approach also offers the advantage of maintaining the existing interpretation and practices. Another option is to impose value-added tax on the trustor；however, taxation in this way should be accompanied by the introduction of detailed provisions that take account of the overall value-added tax system by legislation.