구조화 총수익스왑거래(Total Return Swap)와 과점주주 간주취득세 과세에 관한 小考: 서울고등법원 2021. 8. 19. 선고 2020누45454 판결 사안을 중심으로

Abstract

This paper generally explores a controversial case regarding the true nature of (so called) ‘Structured Total Return Swap Transaction’(hereafter ‘S-TRS’), and the interpretation of oligopolistic shareholders under the Local Tax Act(the Seoul High Court Decision 2020Nu45454). Chapter 2 examines factual contents and legal reasoning on the problematic transactions in the Seoul High Court Decision 2020Nu45454. The Seoul High Court Decision 2020Nu45454 reviewed two categories of problematic issues: the true nature and legal assessment of ‘S-TRS’ in the acquisition tax, and legal approach for interpretation regarding the concept of oligopolistic shareholders. On the former, The Decision ruled that ‘S-TRS’ in the factual circumstances made the swap transaction buyer(Corporation D) did not get substantial control of a Corporation in this case. On the basis of contractual conditions in the ‘S-TRS’, the individual agreements for corporate voting and control consists that it can not lead a legal and economic interest to rearrange to the swap transaction buyer(Corporation D). On the latter, The Decision made a interpreting judgement based on the textualism. Based on the legal text under the fundamental act of Local Taxes, we have certain limitation to interpret over the presentation from the legal texts. Therefore, the legal approach to limitation on the textualism also applies to interpret the definition of oligopolistic shareholders and special connected persons. Chapter 3 theoretically scrutinizes the true nature and legal assessment of ‘S-TRS’ in the acquisition tax. First of all, it elaborates on the legal features of ‘S-TRS’ and makes a comparison among ‘S-TRS’, Share lending Transaction, and Repo Transaction. Secondly, it reviews that the individual arrangements for corporate voting and control as a part of the ‘S-TRS’ does not make the swap transaction buyer(Corporation D) be the main oligopolistic shareholder on the perspective of Substance-Over-Form Doctrine under Article 17 of the fundamental act of Local Taxes. Chapter 4 deals with limitation about legislative alternative suggested by other papers on the purpose of acquisition tax. An alternative to expand legal categories of special connected persons under the fundamental act of Local Taxes has two main logical problems: constructing double deemed definition of ownership for taxation, and misguiding certain preferences to affiliates within group of circular shareholding companies.