출자전환으로 과점주주가 된 채권자에 대한 과세상 제 문제

Abstract

In the face of an increasing number of enterprises proceeding corporate rehabilitation or workout, it is being judged that it is possible to impose a deemed acquisition tax or a secondary tax liability on those who have become oligopolistic shareholders through debt-for-equity swaps in the process of recovery or workout, in accordance with the Local Tax Act. Debt-equity swaps is utilized for the current corporate restructuring, however, in the process of converting bonds into stocks, debt-equity swaps are acting as a ground for taxation such as deemed acquisition tax or secondary tax liabilities to oligopolistic shareholders. However, considering the characteristics of debt-equity swaps, taxation to debt-equity swaps is required to be improved to strengthen the benefits of creditors. However, since those who have become oligopolistic shareholders through debt-for-equity swaps in the process of corporate rehabilitation or workout are not able to actually exercise shareholder’s rights, as courts and the Financial Creditors’ Committee have actual authorities of management in the process of corporate restructuring, it is not reasonable for the aforementioned oligopolistic shareholders to burden the acquisition tax or secondary tax liability. In addition, considering constitutional principle of taxation equity and possibility of infringement on property rights, it seems to be a Constitutional violation if the acquisition tax or secondary tax liability is borne by the aforementioned oligopolistic shareholders. Furthermore, in order to enhance legal stability and predictability of a person liable for tax payment, the Restriction of Special Local Taxation Act needs to explicitly stipulate that an oligopolistic shareholder shall be exempted from liabilities to the deemed acquisition tax or secondary taxation if he has become an oligopolistic shareholder through debt-to-equity swaps during a corporate rehabilitation or workout progress.