6 | Tax and Law 税收和法律

院校资讯君

Tax and Law
Volume16 Issue 1
税收和法律 第16卷第1期
本期目录
1.
A Study on the legal relations and duty of tax payment of trusts
信托法律关系及纳税义务研究
2.
Scope of calculation of the tax base for deemed acquisition tax due to the change of land price
因地价变化而产生的视同购置税的税基计算范围
3.
A study on tax treatments of virtual assets in Japan and process of developing regulatory framework and its implications for the Republic of Korea
日本关于虚拟资产税收政策及监管框架的制定过程对韩国的启示
部分文章摘要
01
A Study on the legal relations and duty of tax payment of trusts
Abstract: This study set out to explore rational solutions to taxation issues for trusts according to the legal relations and characteristics of trusts, taxpayers of trusts prescribed by each tax law, and the assessment of the current trust taxation system. Overall, the current tax laws provide provisions for the taxpayers of trusts which reflect clearly the characteristics of trusts, the principle of substantial taxation, income and holding tax systems, and other tax law characteristics. The conclusions of the study can be summarized as follows: First, taxation on trusts should be based on their economic owners when considering both the intention of the person concerned trying to separate his or her economic ownership from legal ownership for a trust and the principle of substantial taxation in tax laws. Secondly, legal owners should come before economic ones based on legal relations with a third party involved in transactions when a trustee serves as the person concerned with a legal act. Thirdly, taxation on a trustee, who is the legal owner, can be taxed according to legal provisions for the simple processing of legal relations when the legal relations of a trust have characteristics of a group transaction. Finally, a grantor, a trustee, and a beneficiary share joint responsibilities in external relations with a third party after the setting of a trust as the stakeholders of a trust debt. When a grantor is a taxpayer, he or she should fulfill a payment of tax in kind with a trust property. When a trustee is a taxpayer, a beneficiary should fulfill the secondary duty of tax payment.

摘要：本研究旨在根据信托的法律关系和特点，税法规定的信托纳税人以及对现行信托税收制度的评估，探讨合理解决信托税收问题的法律路径。总体而言，现行税法对信托纳税人的规定体现了信托的特点、实质课税原则、所得税和持有税制度以及其他税法特点。研究结论可归纳如下：第一，信托法律关系中经济所有权人与法律所有权人分离，基于税法中的实质课税原则，应以信托的经济所有权人为征税对象。第二，当受托人作为法律行为的当事人时，根据与交易第三方的法律关系，法律所有权人应优先于经济所有权人。第三，当信托的法律关系具有集团交易的特征时，可根据法律规定对作为法律所有权人的受托人征税，以便简单地处理法律关系。第四，委托人、受托人和受益人作为信托的利害关系人，在信托设立后与第三方的对外关系中共同承担责任。当委托人是纳税人时，应以信托财产承担纳税义务；当受托人是纳税人时，受益人应当承担纳税义务。
02
Scope of calculation of the tax base for deemed acquisition tax due to the change of land price
Abstract：There has been considerable controversy over whether acquisition tax is levied on costs that project implementers such as housing site development projects install infrastructure and pay various levies during the project implementation process. Recently, the Supreme Court presented clear criteria for judgment on considered acquisition (Supreme Court Decision 2019Du56654, October 27, 2022) that the factual acquisition involves changing the land and increases the value of the land when the cost related to the land change is spent. Therefore, it was clarified that infrastructure installation construction costs and infrastructure charges meet these requirements in the process of housing site development, so even if they are spent for the use of buildings, they are subject to a deemed acquisition tax that increases the value of land.
On the other hand, the meaning that the value of the land has increased since the expenditure of expenses in connection with the change of land name can be reviewed in connection with the acquisition period considered as deemed acquisition. In principle, Article 20 (10) of the Enforcement Decree of the Local Tax Act shall be acquired as early as between the date on which he land is actually changed in the Local Tax Act and the date on which the land is changed in public documents. However, in order to build a new building, it is essential to change the purpose of the building, and even if the cost of building the infrastructure is closely related to the use of the new building, it is reasonable that the acquisition tax is levied on land before the completion of the building. Therefore, the Supreme Court s judgment can be seen as reasonable.
On the other hand, the current Local Tax Act does not actually provide specific criteria for determining the acquisition and value of land, and does not have a system to verify whether the acquisition cost of land has been properly reflected in the taxpayer s reporting. Therefore, it is necessary to specifically list the items of acquisition costs of land that are deemed acquired under the current law, and to go through self-verification procedures through a sincere report and external adjustment system for data submitted by the acquirer in the process of reporting the deemed acquisition tax.

摘要：在项目实施过程中，住房用地开发等项目的施工方安装基础设施和缴纳各种税费的成本是否征收购置税，一直存有争议。2022年10月27日，最高法院在一项判决（第2019Du56654号判决）中对认定征收购置税提出了明确的判断标准，即涉及土地变更，在支出与土地变更相关的费用时，实质增加了土地价值。因此，在住房用地开发过程中，基础设施及安装建设费用符合上述要求，即使其是为建筑物的使用而支出的费用，也因增加了土地使用价值而视同征收购置税。
一方面，土地价值是否增加，可在支出土地变更相关的费用后，结合被视为收购的征用期进行审查。原则上，根据《地方税法执行令》第20条第10款规定，自《地方税法》所规定的土地实际变更之日起至法律文件所载的土地变更之日止，应尽早取得土地。但是，为了建造新的建筑物，必须变更土地用途，故征税时间早于建筑物的竣工时间是合理的。因此，最高法院的判决合理。
另一方面，现行《地方税法》实际上并未规定确定土地购置价值的具体标准，只能依靠判例解释；实践中也未建立一套制度以核实纳税人的自行申报是否正确反应土地购置成本。因此，有必要具体列出现行法律所规定的视同取得土地的成本项目，并通过据实申报要求和外部调整制度对土地取得者所申报的税款数据进行核查。
03
A study on tax treatments of virtual assets in Japan and process of developing regulatory framework and its implications for the Republic of Korea
Abstract: In Korea, a revision to the tax law, which sets the method of taxation on virtual asset income, was set to take effect, but taxation has recently been suspended. It has been postponed for two years until 2025. However, taxation-related issues are still important. Specifically, virtual asset income was classified as other income and taxed separately at a 20% tax rate. Considering that the above revised tax law is a legislation at the beginning of taxation, some point out that access to virtual asset income is inherently problematic, and it is likely to face various unexpected problems in light of the early implementation. What can be referred to for an appropriate response to this is the policies and directions of countries that have already imposed taxation. As the revised tax law stipulates that residents  virtual asset income is other income, we would like to prioritize discussions on Japan s taxation system, which taxes crypto asset transaction income as miscellaneous income in principle. The fundamental reform of the taxation system is not easy, and it may be more realistic to look at the theories and precedents that have been the center of Japan s legislative process and discussions, given that they show considerable similarities to our revised tax law. The Japanese Income Tax Act does not have explicit regulations on income from crypto asset transactions, but the National Tax Agency treats it as miscellaneous income in principle through guidelines. However, questions are being raised about the theoretical validity of the National Tax Service guidelines. This is because the basis for taxation on crypto assets has not been clearly explained. Due to the diversity of crypto assets, it is argued that tax treatment based on the purpose of holding or trading is necessary. Our revised tax law also intends to uniformly tax virtual asset income as other income, but it is necessary to supplement the classification criteria considering the concept and nature of virtual assets. In other words, it is necessary to present criteria for judgment in enforcement ordinances so that the classification according to the nature of virtual assets and the appropriate taxation system can be applied.

摘要：韩国规定虚拟资产收入征税方法的税法修正案原定生效，但最近暂停征税至2025年。然而，与税收相关的问题仍至关重要。具体而言，虚拟资产收入被归类为其他收入，按20%的税率单独征税。考虑到上述修正案是初期立法，有人指出虚拟资产收入的获取本身就存在问题，而且由于实施时间较早，很可能面临各种意想不到的问题。对此，可以参考已经开征有关税收的国家政策，以采取适当的应对措施。由于税法修正案规定居民的虚拟资产收入属于其他收入，而日本原则上将虚拟资产收入作为杂项收入征税，因此本文优先讨论日本税制。从根本上改革税制并非易事，从日本立法过程中讨论的核心理论和先例来看，与我国税法修正案有诸多相似之处，因此，研究这些理论和先例可能更为现实。日本《所得税法》对虚拟资产交易收入没有明确规定，但国税厅通过指南，原则上将其作为杂项收入处理。然而，由于对虚拟资产征税的法律依据尚未明释，人们对国税厅指南的有效性提出质疑。出于对虚拟资产多样性的考虑，有人认为有必要根据持有或交易目的进行税务处理，我国税法修正案也拟将虚拟资产收入统一作为其他收入征税，但考虑到虚拟资产的概念和性质，有必要补充分类标准。换言之，有必要在执行条例中明确判断标准，以便根据虚拟资产的性质，分类适用相应的税收制度。
整理 | 黄晓婕
排版、审核 | 寇韵楳、薛榆淞



北京大学税法研究中心
Peking University
Center for Tax Law


长按二维码关注我们