현물출자 시의 과세특례에 관한 연구

Abstract

On the one hand, Korean tax law generally treats an in kind contribution of property as a transfer of the property and thus, requires any gain realized upon such transaction to be recognized immediately. On the other hand, Korean tax law allows exemption or deferral of tax on investment in kind to some extent if there is an economic reasonableness or necessity based upon the notion that such investment in kind is not only one of the various ways of corporate restructuring but also reflects a mere change in form of the business investment. In fact, there are a variety of provisions with regard to tax deferral or exemption upon in kind contribution of property in Korean tax law such as Special Taxation For Investments in Kind under the Corporate Tax Act(hereafter referred to as “CTA”) article 47-2, Carryover Taxation of Transfer Income Tax on Conversion into Corporation under the Restriction of Special Taxation Act(hereafter referred to as “RSTA”) article 32, Special Taxation for Incorporation of Holding Companies, etc. by Means of in Kind Investment of Stocks, etc. under RSTA article 32-2, Special Taxation for Investment in Kind in Stocks, etc. of Foreign Affiliated Company by Domestic Corporation under RSTA article 32-3, Special Taxation for Corporate Stock Exchange, etc. for Strategic Alliance with Venture Business under RSTA article 46-2, Special Taxation for Corporate Stock Exchange, etc. for Strategic Partnership of Logistics Enterprises under RSTA article 46-3, Special Taxation for Investments in Kind for Agricultural Partnership Corporation, Fishery Partnership Corporation and Incorporated Agricultural Corporation under RSTA articles 66 to 68, Special Taxation of Corporate Tax on Investment of Land in Kind within Enterprise City Development Project Zone, etc. under RSTA article 85-3, and Special Taxation of Corporate Tax on Investment of Land in Kind for Free Economic Zone Development Projects under RSTA article 85-4. This paper mainly focuses on all the articles related to investments in kind contained in CTA and RSTA, analyzing them and comparing them with parallel or comparable provisions of the Internal Revenue Code of the U.S. and the Corporation Tax Law of Japan. This paper discusses several points in question of them in conclusion.