사모펀드 과세제도의 문제점 및 개선방안

Abstract

In recent years, the size of private equity investment organizations (hereinafter referred to as “private equity funds”) under Capital Markets and Financial Investment Services Act have increased significantly. The reason why private equity funds are activated is that private autonomy is widely recognized unlike the public offering funds under the regulatory law, and as with corporate system, the anonymity of the investor is guaranteed, but it also bears limited liability, not paying corporate tax. The principle of diversified investment, the principle of mark to market, or the principle of buying back from time to time are not applied to the private equity funds, which are sold for a small number of wealthy person, unlike public offering funds sold to a large number of unspecified small investors. Private equity funds need to be differentiated in taxation as they differ in nature from public offering funds. Moreover, the private equity funds are more likely that, despite the fact that the economic substance of any transaction or activity is the same, they can select a legal transaction or activity with minimal tax burden (the likelihood of tax avoidance). The need to design a tax law so that the private equity funds take the same tax burden in any legal form is greater than the public offering funds. However, according to the current tax regime of a professional investment private equity funds are taxed in the same way without discrimination from the public offering funds, if it falls under the eligible collective investment organization under the Income Tax Law and the Corporate Tax Law. Since the private equity fund sto have legal personality, are taxed as a legal entity, otherwise being taxed differently, there is a problem that is deviated from the logical structure of handling the same taxation in the same economic function. In the taxation of private equity funds, there is no reason to apply the logic of tax equilibrium with direct investment applied to public offering funds, and it is possible to design a taxation system according to its own taxation logic. Therefore, I will make the following suggestions regarding the taxation of a professional investment private equity funds. First, private equity funds should be excluded from the scope of eligible collective investment organizations under the current income tax law and corporate tax law. Second, trust-type and non-corporate private equity funds without legal personality, by being assumed to be a corporation and that equity to be assumed to be stock under the tax law, should be taxed in the same manner as private equity funds with legal personality. Third, the dual tax adjustment method of private equity funds is to be taxed by selecting the pay-through method in case of a professional investment private equity funds, and the revised pass-through method in the case of a professional investment private equity funds. For a management participation private equity funds, it is not appropriate to separately calculate the amount corresponding to interest income from the income allocated to the private equity funds and impose a withholding obligation on that part. In addition, if the private equity funds does not choose to apply the partnership taxation system, it is necessary to ensure that it is subject to the provisions of the dividend deduction provisions. In order to prevent the possibility of tax evasion using passive business partner regulations, it is necessary to review the revision of the private equity funds in the direction of withholding and paying for each income.