사업신탁의 설립과 상장에 따른 신탁세제개편방안―벤처형 사업신탁 설립과 상장을 중심으로―

Despite Article 2 of the 2011 revised Trust Act explicitly allows the way to establish a business trust that runs a business by dividing the “business part”, the Capital Markets Act does not include “business” in the scope of trust property, making it difficult to establish a business trust. Nevertheless, it is necessary to consider the establishment of a business trust as a way to “structurally” protect the management rights of venture companies, and in this case, it is necessary to examine how the trust tax regime should be reformed. First, if neither the trustor nor the beneficiaries control the trust, and if the trustee is a for-profit trust and the trustor's shareholders become beneficiaries, it will be classified as a corporate taxable trust. Therefore, the taxation problem of capital gains tax due to the establishment of a trust in a corporate taxable trust applies as it is. If a venture entrepreneur who runs a start-up business establishes a trust corporation and a) trusts his or her “start-up business” to the trust corporation and acquires 100% of the beneficiary rights, b) the beneficiary rights for the business are transferred to a beneficiary who invested in the beneficiary rights, c) or if a venture entrepreneur sells some of the beneficiary rights to the venture investor, since the transfer of start-up business and the acquisition of beneficiary rights are in a consideration relationship, it is a principle to impose capital gains tax on the consignor. In other words, a) means that the consignor acquired the beneficiary rights from the trustee through the business transfer of the startup, and b) & c) cause the transfer of the beneficiary rights, resulting in a capital gains tax problem for venture entrepreneurs. For policy purposes to revitalize the trust, it will be necessary to consider the application of carryover tax, which delays the taxation of capital gains tax, until the entrusted corporation transfers the trust property, i.e. start-up business. This is because the establishment of a business trust has a similar aspect to the corporate conversion of an individual company, and if the trust and corporation have the same function in that they generate and distribute profits, it is necessary to secure the neutrality of taxation between the two systems. Second, when the trustee taxation principle is applied to a business trust at the listing stage of a venture-type business trust, the problem of adjusting economic double taxation arises. Business trusts differ from organizations subject to paid-dividend income deductions in that they engage in business activities, but there is no reason to exclude them from the application of paid-dividend income deductions because business trusts can also make compulsory distribution agreements. In order to adjust economic double taxation, the Corporate Tax Act will need to allow income deductions to corporate taxable trust property for the amount distributed to beneficiaries. However, in this case, there is a problem that the amount of dividends received by the beneficiary decreases as it is taxed at the entrusted corporation level compared to a beneficiary taxable trust. If the business trust plays the role of a simple conduit for distributing income to beneficiaries, it would be appropriate to selectively apply the pass-through method rather than applying the pay-through method uniformly to the business trust. Third, when a beneficiary of a venture-type business trust transfers beneficiary certificates, if it is a corporate taxable trust, it is strongly traded as securities separately from the property subject to the issuance of securities. Even apart from the taxation of capital gains tax, it would be reasonable not to tax the value-added tax as it is understood as the transfer of bonds, that is, the transfer of rights. Fourth, in the case of a venture-type business trust in which a corporation is a trustee, there is a problem of whether or not it should be a corporate taxable trust according to the trustee’s choice. If this is allowed, only the shareholders will be liable for income tax without paying corporate tax on the profits generated by the business trust. Therefore, if there is a possibility of tax avoidance such as making shareholders the beneficiaries, the business trust must be regarded as a corporate taxable trust, and it is necessary to limit the income deduction on the corporate taxable trust property so that it can be taxed at the trustee and beneficiary level separately. If the trustor controls the business trust, it will be safe to regard the business trust as a trustee taxable trust.