금융상품과 공격적 조세회피사례

Abstract

Recently, there is a continuous increase in the number of tax planning or tax avoidance financial products like Japanese-yen-swap time deposit case, which are actively selling in the market. However, owing to development of financial techniques, hybrid financial products with various features, such as derivative linked securities, convertible bond and bond with warrant, have been introduced to the market and when it comes to financial product taxation, the standards for classifying tax planning and tax avoidance is getting more and more unclear. This thesis studied the concept of aggressive tax planning, which is emerging recently, and reviewed whether this can be differentiated from pre-existing concepts such as tax planning, tax evasion and tax avoidance. In addition, different ways of aggressive tax planning centered on High Net Worth Individuals (“HNWIs”) were examined, followed by analysis of supply chain in the market where aggressive tax planning products with mass marketed structure are being designed, provided and distributed. Regarding mass marketed or customized aggressive tax planning products, by analyzing closely on actual cases and possible cases that can appear in the market, understanding of such products was enhanced and problem and alternatives were sought. The result of this study demonstrated that regarding gold-banking as derivative linked securities and imposing tax as dividend income not only lacks logical validity but also cause a problem of retroactive taxation. In addition, there is a problem in perspective of economic substance in that discount on national housing bond, being used as a way of tax planning by HNWIs, is not being taxed as interest income. Furthermore, it suggested that it is possible to perform aggressive tax planning adopting customized structures which use new financial products, such as listed futures and bond with warrant. From the perspective of financial tax system, there is a need to minimize tax loophole by faithfully complying with financial related laws and regulations, or by newly establishing financial product concepts of its own under tax law and seeking harmonization between tax law and financial products concept and valuation under existing financial related laws and financial theories. In view of tax system and other infrastructure, when tax authorities are designing or executing tax system on financial products, they need to be more realistic and market-oriented through deeper understanding of individual’s income, source of asset or structure of financial products oriented by tax avoidance purpose. Also, financial companies should reduce possibility of incomplete sale on customers by considering taxation nature of financial products when designing and selling financial products.