자기주식의 취득에 관한 과세상 쟁점

Abstract

Given that the construal and application of tax laws hinge on legal relationships with judicial transactions such as civil law and commercial law, amendments to the commercial law may impact the taxation of treasury stock-related transactions. With the revision of the Commercial Act on April 14, 2011, regulations governing the acquisition of treasury stocks were relaxed, and constraints on incineration and disposal were eliminated. Nonetheless, in addressing taxation issues surrounding treasury stock transactions, it appears that the interpretation of the bygone commercial law era persists. This article delves into the taxation issues for treasury stock transactions based on the revised Commercial Act. Concerning corporate taxation, if the acquisition of treasury stocks is deemed invalid, tax practices dictate that it be taxed as if the company has made an independent payment to shareholders. If the company acquires treasury stocks without a specific shareholder funding purpose, and the acquisition violates commercial law requirements and procedures, it is challenging to consider the company as extending funds to shareholders. Therefore, it is unwarranted to promptly classify it as an independent payment solely due to the invalidity of the treasury stock acquisition. Secondly, in shareholder taxation, income is categorized based on the interpretation of legal actions. If the sale of stocks is considered an asset transaction, it qualifies as capital gains；if it is a capital transaction, it is treated as dividend income. Although consideration of circumstances post the company's acquisition of treasury stocks is required, legal precedents suggest that the obligation to cancel after stock acquisition is nullified, and the revised Commercial Act is applied, heightening uncertainty in income classification. To establish legal stability and predictability in the taxation of treasury stocks, it should be possible to ascertain whether income from the disposal of treasury stocks is dividend income or capital gains at the time of acquisition. If the company is determined to reduce capital or cancel stocks prior to acquiring treasury stocks, classifying them as dividend income is reasonable, whereas in other cases, they should be regarded as capital gains. In legislative theory, it is rational to tax shareholders' income from in-house retained profits as dividend income and income from capital gains from stocks as capital gains.