세법상 적격합병요건에 관한 고찰

Abstract

The raison d'être of conditions of qualified merger is to cope with tax evasive transaction which disguised as merger. There maybe two type of legislative approach. The one is to prescribe the comprehensive conditions and general anti-abuse rule, the other is to prescribe the detailed conditions and not the general anti-abuse rule(“GAAR”). From the perspective of comparative law, U.S.A and Germany have the former system, whereas Korean has the latter system. Japan has the eclectic system. Since the merger tax regime is to expedite the merger which is required of economic necessity, it is desirable to place a flexible conditions and also a GAAR. However, if there is little predictability in application of GAAR, it will constrict the merger transaction to the contrary. Our merger tax regime has very detailed and complex rules but does not have GAAR. It is to enhance the legal stability. Hence there is almost no merger case which is taxed. But the transaction structures are seemed to be distorted in many cases and there maybe many disguised merger transactions which are in fact a tax evasive transaction. However at the present stage, if we place a GAAR, the volume of merger transactions will decrease dramatically the reliability on the tax office being very low. From a long-term perspective, when the overall conditions(sound sense of tax payment, reliability on the tax administration) are prepared, we may consider the merger tax regime to be shifted to the U.S.A. or German system.