주제별 논단 : 기타 ; 부동산담보신탁의 부가가치세 납세의무자에 관한 검토 -서울고등법원 2012. 9. 6 선고 2012누2421 판결을 중심으로- = Tax Payer of Value-Added Tax at the Real Estate Collateral Trust -Focusing on the High Court Decision 2012Nu2421-

다국어 초록 (Multilingual Abstract)

This paper discusses who should be the tax payer of the Value-added Tax when real estate in trust is transferred in reference to a court case. The situation of the court case was that a trustor, who owned some commercial real estate, entered into a collateral trust agreement with the real estate trust company (the trustee) and received a certificate of beneficial interest in return. The trustor used the certificate as collateral to the nominated bank (the primary beneficiary) in order to get a loan for paying money of above buildings. The trustor defaulted the loan and the trust company sold the trust property to the primary beneficiary paying the debts to the creditor with the proceeds. In such transaction of the trust property, the Tax Tribunal decided that the trustor should pay the value-added tax, however the high court ruling was that the primary beneficiary should pay the tax. Tax Tribunal`s decision is based on the reasoning that in the case, the collateral trust was agreed for the collateral of the loan, therefore the transfer of the practical control to the building occurs on the day of the transfer of the building ownership after paying the debt, not on the day of the trust registration. Supreme Court`s decision was the established position from the preceding cases that the primary beneficiary of the transfer of the trust property should be the tax payer to the extent of being covered by his beneficial interest in case of ``trust where a third party beneficiary receives benefits from trust,`` while in case of ``trust where the trustor himself receives benefits from trust,`` the trustor should be the tax payer. The high court concluded that the type of trust of the case is the collateral trust and ``trust where a third party beneficiary receives benefits from trust,`` therefore the primary beneficiary should be the tax payer. This article analyzes the decision of the Tax Tribunal and the High Court`s judgment and raises two questions. First, the reference case in the district court decision is management?disposal trust, not collateral trust in the forementioned case. The type of trust is different in character and content. Second, a certificate of beneficial interest can be issued on collateral trust, not on management?disposal trust. As the structure and type of real estate trust varies depending on the trust goals, the decision on who should be the tax payer in the case of the transfer of the trust property needs detailed interpretation of the trust contract. The high court ruling gives a preview as follows : First, ``trust where the trustor himself receives benefits from trust`` exists in the collateral trust. Second, it does not conform to the fundamental nature of the value-added tax which is the multi-stage tax. Third, trustor makes unfair profits as there is no supply of goods to the primary beneficiary.