신탁재산 처분에 따른 부가가치세 납세의무자

Article 1(1)1 of the former Value-Added Tax Act (amended by Act No. 9915, Jan. 1, 2010) identifies transaction, namely, the “supply of goods or services” as the object of value-added taxation. Article 2(1)1 of the same Act identifies the entrepreneur, namely, “a person in the business of independently supplying goods or services regardless of its profit purpose” as the person liable to pay value-added tax. Article 6(1) defines supply of goods as “a delivery or transfer of goods based on any contractual or legal grounds.” In previous rulings, the Supreme Court held that, as a matter of principle, a truster (not a trustee) is liable to pay value-added tax due on the management and disposal of trust property but in the event that a beneficiary (not a truster) is designated as the party to whom the benefits from a trust arrangement is to be preferentially attributed, that beneficiary is liable to pay value-added tax due within the scope that the preferred beneficiary right is exercisable. Establishing the requirements for taxation by law that was passed by the National Assembly, which is a representative body of the people, is consistent with the principle of no taxation without law. Yet, unlike other tax-related statutes (i.e., the Income Tax Act, the Corporate Tax Act, the Inheritance Tax and Gift Tax Act, and the Local Tax Act), the Value-Added Tax Act does not include any provision on tax liability arising from trust transactions. Against this backdrop, the reasonableness of the Supreme Court’s established position leaves a lot to be desired in similar cases where the trustee, who administered the trust affairs as a contractual party and the subject to whom the rights and obligations of the trust property accrue, engaged in a transactional act involving the supply of goods. Accordingly, in the subject case, the Supreme Court overruled its earlier decision by holding to the purport that the person liable to pay value-added tax arising from the supply of trust property shall be the trustee or beneficiary under a trust agreement to whom the profit and expense arising from the disposal of the specific trust property ultimately accrue. The former Value-Added Tax Act only taxes the transaction itself, namely, the “supply of goods or services” that generates added value, without deeming the income earned or the added value created from the transaction to be taxable items. As such, Korean value-added tax features the characteristics of a transaction tax, imposed on the external form of transaction instead of the substantive income. In principle, whether a party constitutes a person liable for value-added tax shall likewise be determined based on the transactional act of supplying goods and services, instead of the attribution of the profit or expense arising from the transaction. Meanwhile, under the Trust Act, trust means a relationship in which the truster transfers specific property right to the trustee or performs other disposition to have the trustee manage and dispose of the property in question for the benefit of the trust. Therefore, in cases where the trustee supplies goods while managing and disposing of the trust property transferred by the truster, the trustee himself/herself administers the trust affairs as a contractual party and the subject to whom the rights and obligations of the trust assets accrue. As can be seen, the subject case that deemed the trustee, a transactional party, to be the liable taxpayer is tenable in light of the legal doctrine on value-added taxation or the trust law principle.