행정사무의 민간위탁과 대행시 부가가치세 과세에 대한 고찰 - 한국환경공단의 폐기물관리업무에 대한 적용을 포함하여 -

As the society has become more professional and diverse, the administrative works which used to be carried out directly by the government have been entrusted to the private institutions partly. When private institutions perform administrative work, contracting-out had been typical way, but recently, the agency method has being used. There is confusion in applying the agency method to the tax laws as well as to the administrative laws, because unlike the contracting-out, the concept and legal principle of agency method are not properly established. There are views denying the independent existence of the concept of agency method in the field of administrative works, but the agency method is a useful concept for both theocratical and practical purposes. This paper defines the agency method in administrative works as an act attributed to the government, although the private institutions handle administrative works in the name of the government. If we accept this concept of agency method in the field of tax issues, we can systematically establish VAT taxation related to contracting-out and agency method. According to the concept of agency method, if administrative works are carried out by agency method, the government becomes a party to the transaction and is not subject to VAT in principle. On the other hand, when administrative works are handled by contracting-out, the trustee becomes a party to the transaction and is subject to VAT in principle. The difference between contracting-out and agency method becomes clear in terms of VAT. However, since the principle of substance over form is applied in the tax law, it is reasonable to treat administrative works as tax-free when transactions are made through the calculation and responsibility of government, even if the trustee is a party to the transaction. Thus, although administrative works are carried out by contracting-out, if the transaction is made by the government’s calculation and responsibility, both contracting-out and agency method will have the same result in the application of tax laws.