신탁부동산의 공급상 부가가치세 납세의무자에 관한 연구 = A study about who is the taxpayer of value-added tax when supply trust estate

국문 초록 (Abstract)

부가가치세법이 개정되기 전 신탁부동산 양도에 따른 부가가치세 납세의무자에 대하여는 학설과 판례, 과세관청의 입장이 제 각각으로 많은 논의가 이루어졌으며, 현재에도 논란은 진행 중이다.
이러한 논의의 배경은 형평법상의 소유권과 보통법상의 소유권의 분화를 인정하는 영미법계에서 유래한 신탁제도의 기원과 경제적 소유권과 법적 소유권이 구분되는 신탁의 특징에서 비롯된 것으로 경제적 실질을 강조하느냐 법적실질을 강조하느냐에 따라 납세의무자를 도출해내는 논리에 근본적인 차이가 있다.
법적 실질을 강조할 경우 부가가치세법 및 현행 신탁법의 규정 등을 고려할 때 신탁재산의 대내외적인 소유자인 수탁자를 부가가치세 납세의무자로 보는 것이 타당하며, 이러한 입장이 대법원 전원합의체 판결의 태도였다.
반면 경제적 실질을 강조할 경우 그 경제적 실질을 어떻게 보느냐에 따라 부가가치세 납세의무자가 달라지는데, 그 경제적 실질을 수익의 귀속으로 볼 때에는 수익의 귀속자(자익신탁의 경우에는 위탁자, 타익신탁의 경우에는 수익자)로 보는 것이 타당하고, 이 견해가 전원합의체 판결 전 대법원의 태도였다.
또한 경제적 실질을 거래의 귀속으로 볼 때에는 실질적 통제권의 이전 여부에 따라 실질적 통제권이 이전된 경우에는 수익자, 그 외의 경우에는 위탁자를 부가가치세 납세의무자로 보게 된다.
그런데 부가가치세법은 2017. 12. 19. 신탁재산 양도에서 부가가치세의 납세의무자를 원칙적으로 위탁자로 하고, 예외적으로 부동산담보신탁의 경우에만 수탁자로 하는 것으로 개정되었다.
이러한 개정 부가가치세법은 경제적 실질설의 입장에서 거래의 현실을 반영함과 동시에 실질적 통제권이라는 모호한 개념을 사용할 경우 당사자의 예측 가능성을 해할 수 있으므로 거래의 현실을 반영하여 담보신탁을 제외하고 일률적으로 위탁자를 부가가치세 납세의무자로 보는 방법을 택한 것으로 생각된다.
그러나 담보신탁의 경우에는 그 경제적 실질이 담보와 유사함에도 불구하고 다른 담보제도와는 달리 수탁자를 부가가치세 납세의무자로 보는 것은 조세형평에 반한다. 또한 개발신탁의 경우에는 위탁자는 토지를 제공할 뿐이며, 수탁자가 건물 개발과정에서 건축인허가, 금융기관으로부터 건물공사대금 차입, 건물신축 공사 계약체결 및 처분·분양계약 등 전 과정에서 수탁자가 당사자가 되어 수탁자의 명의와 책임으로 진행하므로 개발신탁에 있어서는 수탁자를 부가가치세 납세의무자로 보는 것이 보다 경제적 실질에 부합한다.
따라서 신탁 세제 관련한 현행 부가가치세법의 개선 안으로 담보신탁을 포함하여 원칙적으로 위탁자를 부가가치세 납세의무자로 보되, 개발신탁의 경우 수탁자를 부가가치세 납세의무자로 보는 것으로 법률을 개정하는 방안을 제시한다.

목차 (Table of Contents)

• 제1장 서론······························································1
• 제1절 연구의 배경과 목적············································1
• 제2절 연구방법 및 범위··············································· 3
• 1. 연구의 방법··························································3
• 2. 연구의 범위 및 구성·················································4
• 제2장 신탁제도의 일반론················································6
• 제1절 신탁제도의 개관···············································6
• 1. 신탁의 개념····························································6
• 2. 신탁 제도의 유래·····················································6
• 3. 신탁의 당사자·························································8
• 4. 신탁제도의 특징·····················································14
• 5. 부동산 신탁의 유형·················································15
• 제2절 신탁과세이론 및 신탁 과세체계······························19
• 1. 신탁과세이론·····························································19
• 2. 신탁 과세체계····························································21
• 3. 외국의 신탁 관련 과세 입법례········································23
• 4. 소결어·····································································30
• 제3절 실질 과세의 원칙 및 기존 논의의 한계·····················31
• 1. 실질과세의 원칙······················································31
• 2. 기존의 논의······························································38
• 3. 소결어-기존 논의의 한계·············································42
• 제3장 실질과세원칙에 따른 부가가치세 납세의무자··············44
• 제1절 법적 실질을 강조할 경우································44
• 1. 부가가치세 납세의무자·················································44
• 2. 신탁의 구조에 관한 이론···············································46
• 3. 각 학설에 따른 부가가치세 납세의무자······························56
• 4. 대법원 전원합의체 판결의 태도········································57
• 5. 소결어····································································60
• 제2절 경제적 실질을 강조할 경우···································61
• 1. 경제적 실질의 의미······················································61
• 2. 수익의 귀속으로 보았을 때············································62
• 3. 거래의 귀속으로 보았을 때·············································66
• 4. 소결어···································································70
• 제4장 개정 부가가치세법에 대한 평가 및 개선 방안·····················71
• 제1절 주요 내용······················································71
• 1. 개정이유································································71
• 2. 개정 부가가치세법의 내용···········································71
• 3. 개정 부가가치세법의 특징···········································73
• 제2절 과세실무의 변화···············································75
• 1. 전원합의체 판결 이전···················································75
• 2. 판결 이후 부가가치세법 개정 이전···································76
• 3. 부가가치세법 개정 이후·················································77
• 제3절 개정 부가가치세법에 대한 평가·······························78
• 1. 개정 부가가치세법에 대한 분석·······································78
• 2. 각 입장에 따른 비판····················································79
• 3. 소결어···································································81
• 제4절 부가가치세법의 개선 방향·········································82
• 1. 도입부·····································································82
• 2. 신탁 유형별 부가가치세 납세 의무자································83
• 3. 신탁 유형별 매입세액 공제의 처리··································86
• 제5장 결론·····························································87
• 참 고 문 헌···························································90
• ABSTRACT·························································93