신탁을 이용한 책임재산의 감소와 조세포탈의 문제 - 부동산 신탁에서의 부가가치세를 중심으로 -

Currently, discussions on who is the right person liable to pay taxes of various types arising from the legal relations of the trust are not unified, and even the relevant legislation is not consistent. In particular, frequent changes in the legislation have caused significant confusion in the real estate trust business as to whether a truster or trustee shall assume the obligation of the value-added tax (“VAT”) payment. Under the current VAT Act, a person liable for the VAT payment from a real estate trust business is a truster, and in the event of a default, when the VAT amount in arrears, relevant additional tax, and costs related to the disposition on default fall short of the amount to be collected, even if the truster's other property is in arrears, a trustee then assumes a supplemental obligation of payment of tax in kind to the limit of the trust property. The purpose of this legislation seems to minimize the loss of tax revenues through a phased system of tax obligations, but when the truster is involved in the embezzlement of refunds that occur early in the real estate trust business using his tax obligation, even if the VAT return is made legitimately, the result may be that the collection is not carried out properly due to the lack of the trust property and other executable assets. The possibility of penalizing tax evasion for acts that reduce executable properties depends on the interpretation of Article 3(6) of the Punishment of Tax Offenses Act on ‘active acts which make the imposition and collection of taxes impossible or remarkably difficult’. In the previous case concerning gold bullion, the majority opinion from the Supreme Court’s en banc decision was interpreted as the ‘imposition or collection of taxes’ and included acts, which made it impossible or significantly difficult to collect them, but ‘only if the reporting was perfunctory, which did not report the tax base in substance’ to constitute a crime related to tax evasion, taking a limited and cautious position toward conviction. For the comparison purpose, based on 26 U.S. Code Section 7201, Article 380 of Abgabenordnung in Germany, and Article 159(1) of Corporate Tax Act (法人税法) in Japan as well as relevant cases thereof, it can be generally interpreted that even justly defined tax receivables may be punished as tax evaders for the acts, which make tax collection and execution impossible. In light of the legal principles concerning the relationship between the decrease in executable properties and tax evasion of the VAT related issues in the real estate trust business, it is necessary to consider the punishment of tax evasion on the grounds of incapacity or difficulty in collecting taxes if the following circumstances are recognized although appropriate reporting did not interrupt the settlement of tax receivables. If a truster established a formal corporation to evade the VAT from the beginning, entered into a trust contract with a trustee, embezzled the VAT refund that occurs in the early stage of the business, and shifted the responsibility of the future VAT payment to the trustee or other trust creditors by arbitrarily consuming the refunded amount or closing the business, etc., which resulted in the insolvency of the trust property itself and the difficulty of collecting the VAT through the obligation of payment of tax in kind, the series of acts can be seen as perfunctory to evade the VAT. This measure is similar to the type of the act dealt in the gold bullion case of the Supreme Court’s en banc decision regarding the government’s inability to properly collect the VAT from anyone else, and from a broader perspective, with the intention to abuse the nature of the VAT refund occurring in the early stage of the real estate trust business and the right to refund under the statute, a truster’s embezzlement of the input tax that he did not spend can be viewed as an anomalous and intelligent crime that the truster intentionally reduces the magnetism of the trust property, thereby stultifying the obligation of payment of tax in kind, leading to the inability or difficulty of eventual collection, and resulting in a decrease in the national tax revenues.