파생금융상품에 대한 원천징수 방안에 관한 연구- 외국투자자에 의한 Total Return Swap 거래를 중심으로 -

Abstract

The taxation of derivative financial instruments has been an issue for a long time in Korea because derivative financial instruments potentially undermine the integrity of the income tax. The transaction of total return swap is also another way. In transactions of total return swap (TRS), the investor pays an amount equal to the value of some amount of stock of a corporation to the financial institution. In return, the investor receives the right to a dividend equivalent whenever the underlying stock pays an actual dividend, and the right to any appreciation in the stock when the TRS expires, and undertakes to pay the financial institution for any decline in the stock’s value when the TRES expires. For the period of the total return swap, the holder of the TRS is in the same economic position as if it held the underlying stock, although it is not a stock owner for corporate governance purposes. In addition, for the foreign investor there is uncertainty about the tax treatment of the dividend equivalent. It can be argued that the dividend equivalent is equivalent to a dividend which is subject to withholding tax in Korea or is business income which is hardly subject to tax in Korea. There is no good policy reason to treat actual dividends and dividend equivalent differently for withholding tax purposes. When they are treated differently, distortions and tax avoidance are caused. Therefor dividend equivalent should be treated as an actual dividend for tax purposes and the current tax rules should be revised to eliminate uncertainty and prevent tax avoidance.