과점주주 간주취득세 과세 상 지분비율 변동 및 특수관계인 범위 개선에 관한 연구

Abstract

The system of deemed acquisition tax on oligopolistic stockholders has been introduced to prevent indirect acquisition of stocks of a corporation and avoid the corresponding tax levied on the acquisition of real estate owned by this corporation. Although the legislative purpose is legitimately recognized as this system realizes fair taxation through substantial taxation, it continues to be criticized for issues, such as double taxation and damage to the corporate system under commercial law. Therefore, this study notes that the rationality and clarity of taxation requirements are urgently required for deemed acquisition tax rather than for general acquisition tax. Nevertheless, disputes, such as litigations related to deemed acquisition tax on oligopolistic stockholders, continue to increase due to systemic deficiencies. Such issues are serious with the frequent occurrence of litigation cases ranging from tens of billions to hundreds of billions of KRW in scale. Therefore, this study attempts to identify major issues in the current system and seek solutions by analyzing the contents of litigations related to the deemed acquisition tax on oligopolistic stockholders. The issues related to the change in the ratio of shares of oligopolistic stockholders are caused because the current local tax law does not clearly stipulate the taxation scope and timing to complete the tax obligation for deemed acquisition tax on the change in the ratio of shares. Therefore, in this study, improvement measures to solve the issues of the current system are presented as follows. First, even in cases where there is no increase beyond the previous highest ratio of shares acquired by an oligopolistic stockholder, if the ratio of shares for each ble object actually increases, it should be included among objects of taxation. Second, if the first oligopolistic stockholder owned the stocks of the relevant corporation before becoming an oligopolistic stockholder, the amount corresponding to the ratio of stocks owned previously need to be deducted from the object of taxation of the initial deemed acquisition tax. Third, deemed acquisition tax can be reasonably imposed even if the corporation acquires and retires treasury stocks, becoming oligopolistic stockholders or increasing the ratio of shares of oligopolistic stockholders. Fourth, for those who have become oligopolistic stockholders during rehabilitation and workout amongst others, the system must be supplemented so that deemed acquisition tax can be paid when such procedures are completed and share certificates are restored. Fifth, when an oligopolistic stockholder reacquires real estate owned by the corporation that paid the deemed acquisition tax, the acquisition tax on the old registration tax is also an object of taxation. The issues related to the scope of related parties are due to invoking their secondary tax liability, for which legislative purposes are different from deemed acquisition tax on oligopolistic stockholders. Therefore, in this study, improvement measures to solve the issues of the current system are as follows. First, this study proposes to stipulate separately the scope of related parties for the imposition of deemed acquisition tax in the Local Tax Act and the scope of related parties under the Framework Act on Local Taxes and change its name from “deemed acquisition tax on oligopolistic stockholders” to “deemed acquisition tax on controlling stockholders.” Second, those in an economic relationship where it is unclear whether there is a substantial special relationship among related parties are excluded for the taxation of deemed acquisition tax on oligopolistic stockholders. Third, the term “through” should be deleted from the criteria determining management control relationships, and a management control relationship is present if the sum of the stock ratios of parties in special relationships is 50% or more. Fourth, the current regulation that considers controlling influence to be exercised on the management of a corporation can be reasonably deleted if de-facto influence is exerted, such as exercising the right to appoint executives and making decisions in business policies, regardless of the stock ownership ratio. The current deemed acquisition tax on oligopolistic stockholders is criticized for theoretical limitations and systemic deficiencies. Nevertheless, the existence of this system has a significant effect on the prevention of stock transactions for tax avoidance. In particular, considering that de-facto real estate trading through stock transactions is increasing due to the development of the stock system, additional research and legislative supplementation on deemed acquisition tax on oligopolistic stockholders are necessary.