수탁자를 부가가치세의 납세의무자로 하는 신탁세제 논리의 문제점에 관한 연구

In the Supreme Court’s unanimous ruling en banc on May 18, 2017, the current Value-Added-Tax Act requires the trustee to be the taxpayer of Value-Added-Tax in principle, after shifting from the beneficiary to the trustee on the trust property. This position(Trustee Supply Theory, hereafter referred to as “TST”) which requires the trustee liable party for VAT payment on trust, present many problematic situations in practice because it only applies to the supply of buildings and structures, not to the supply of land, which is exempt from VAT(the same rule applies to the supply of houses below the size of national housing exempted from VAT). There are also problems with determining whether incidental consideration received from the buyer in connection with the sale of the trust property affects the VAT base. This is a problem that different trust provisions in the trust agreement may result in different VAT liabilities. In addition, the theory of the trustee supply provision leads to the conclusion that VAT takes precedence over other security interest such as pledges, mortgages, and fiduciary transfer etc. This is contrary to the purpose of the Framework Act on National Tax, which provide that VAT cannot take precedence over existing security interests based on the statutory due date for the collection of taxes. Regardless of whether security is obtained through a trust or a pledge or mortgage, the secured party should not be discriminated against by tax creditors. Even if the trustee becomes a VAT taxpayer when disposing of the trust property under the TST, the trustor(beneficiary), who is the economic owner of the trust property, must report and treat the trust property as his own property when filing and accounting for income tax (or corporate income tax). Accordingly, even if the VAT is accounted for the under the TST, the trustor and the trustee must separately account for the supply of the trust property, resulting in double accounting and tax treatment. Neither the trustee, nor trustor, nor any third party wants to operate under the TST. Only the government supports the TST because, unlike other collateral, the government provides for priority collection of VAT on trust collateral. This sacrifices the trust security holder for no justifiable reason. Therefore, in order to eliminate this unreasonable problem, it is necessary to amend the VAT Act to specify that the trustor (beneficiary), who is the economic owner, as the taxpayer of the trust property. However, it is reasonable to exclude the preferred beneficiary from the scope of the beneficiary because the preferred beneficiary who acquired the beneficial interest for collateral purposed by layering the beneficial interest is in fact a secured party. If this revision is made, the beneficiary who is the economic owner will be the same as the taxpayer for “corporate tax (or income tax)” and ‘value-added tax (transaction tax)” then it will be an efficient tax system, thereby preventing tax evasion and preventing confusion during business processing.