해외투자펀드 투자손실 과세문제 연구

Abstract

The investment trust is a kind of collective investment schemes in a form of trust enabling the property left in trust by the client which is a collective investment management company to a custodian to be invested and managed according to the instruction of the collective investment management company. The investment trust could be called an investment fund using trust scheme as a mediating method for separating fund investor and investment manager as well as separating the owned property of investment manager and the property of investor. The investor gets to participate in the investment by acquiring the securities of investment trust beneficiary certificate. Because investment trust is performance dividend product, it may result in a loss of investment depending on the result of investment. But the current tax law includes the problem of imposing taxes even in case the investment loss has occurred. In other words, the instance in which the interest or dividend income is created within the fund although investment loss has occurred and the instance in which the investment profit from the starting point of investment to the concerned settlement date while including the settlement date in the middle of investment term although the investment loss has occurred fall under here. The former case occurs because of partial profit/loss tax exemption regulations (enforcement ordinance of income tax law section 23 article 4) and the latter case occurs because of reinvestment revenue period regulations according to tax law (enforcement ordinance of income tax law section 46 article 7). The partial profit/loss tax exemption regulations are the regulations made considering direct investment and balance of investment. While all income returned to investment trust is taxed as dividend income by being added up regardless of the type of initial income, all tax exempted income becomes taxable gain/loss as it gets invested indirectly in case of direct investment if there are no legislative considerations. The tax law sets the partial profit/loss tax exemption regulations considering these facts. These regulations set their details as tax exempting the sales assessment profit/loss created from fixed securities such as stocks, etc . At this time, the profits as well as the losses are tax exempt. Accordingly, the problem of being taxed even after resulting in a loss as the interest or dividend income is taxed without being summed up in case the sales loss is greater than the interest or dividend income which belong to the fund. The reinvestment revenue period regulations are the regulations setting the date of reinvestment as the revenue period in case of deciding to reinvest the settlement dividend of the fund by a special contract. These regulations stand for imposing taxes by separating the investment profit before settlement and investment profit after settlement in case there is settlement date during the investment period of investor. According to these regulations, in case the investment loss is created after the settlement although tax is imposed because investment profit is created before the settlement, it is not summed up and nullified. In case the loss after settlement is great than the profit before settlement, it results in being taxed even after resulting in an investment loss. Despite the fact that settlement date is not an important factor in decision making of the investment, the current tax law imposes taxes by classifying the taxation period this way and prohibits summing up. The current tax law considers investment trust as a type of trust. The tax law imposes taxes by classifying the trust as investment and other types of trust while classifying the income created from investment trust as dividend income. In case of other types of trust, it imposes taxes by each detail of initial income which belongs to the trust property. Although both are types of trust, their taxation method is completely different. There are substantial theory and conduit theory in the trust taxation theory. The substantial theory imposes taxes by considering trust property as one entity. On the other hand, the conduit theory imposes taxes by considering that the client or beneficiary owns the trust property. Reflecting on the trust taxation theory, the current tax law assumes substantial theory in terms of investment trust and assumes conduit theory for other forms of trust. The regulation classifying all income created from trust property as dividend income, the regulation setting period of revenue as the date getting profit from the investment trust or the regulation on international dual taxation adjustment, etc are based on substantial theory. Despite these things, the partial profit/loss taxation regulations could be considered as an exception of substantial theory and raises theoretic deficit in terms of investment trust tax system setting the basis as substantial theory. It isn’t necessary to classify by the details of income belonging to initial trust property in order to impose taxes on the profits of investment trust. The investment trust is managed voluntarily by the manager of investment property and receives the results from asset manager in a passive way. The fact is that it isn’t necessary to maintain the income classification of direct investors and income classification of indirect investors in a same way. The profit from investment trust of a indirect investor is a passive income. If the taxation is same for the ones having same taxation balance and different for ones having different taxation balance, the active income of direct investor and passive income of indirect investor are different types of income and it isn’t necessary to impose different taxes by classifying into the details of income by considering taxation balance with the direct investor for this. The reinvestment revenue period is the transformation of former regulation which had considered the settlement date of investment trust as the revenue period. Because the substantial theory is applied for the investment trust, the tax is imposed while receiving the profit from the trust property. The revenue period of profits from initial investment trust was the settlement date of the investment trust. The reason for being regulated this way is because the investment trust has developed based on closed type. In terms of closed type investment trust, the settlement date is adequate for the revenue period. The development of fund industry has led the direction of industry toward open type investment trust and fund profit taxation method has raised many problems such the problem of tax evasion, etc in these circumstances. In order to solve such problems, the date of redemption is also specified as the revenue period in the tax law amendment at the end of 1988. In other words, both redemption date and settlement date are specified as revenue period. Such mixup of revenue period did not become much of a problem at first. That’s because bond type fund was taking up most of the investment trust market and the evaluation on the bond was the book value evaluation as a general rule. Under the book value evaluation, the bond type fund can be recognized as welfare product. But followed by the amendment of securities investment trust business law, the rule of bond evaluation was converted as market value evaluation since the end of 1998. It became an opportunity to be reborn as a performance dividend product. In a situation where the flow of investment profit from the fund is repeating the gain and loss, the reinvestment revenue period is merely the regulation including problem of being taxed even if one results in a loss. The problem of partial profit/loss tax exemption regulations is the problem created because the substantial theory and conduit theory of trust taxation theories are mixed up in the current tax law. Also, the problem of reinvestment revenue period regulations exists because the investment profit taxation method and fund profit taxation method are mixed up in the current tax law. According to such taxation theory, the mixup or conceptual confusion results in the dissatisfaction of investor by damaging the possibility of foreseeing the tax law and the possibility of understanding by investor. It would be necessary for the tax law to pursue unity according to taxation theory of investment trust and conceptual unity of investment trust profits. Accordingly, the partial profit/loss tax exemption regulations and reinvestment revenue period regulation must be eliminated, It is to pursue theoretic and conceptual unity followed by substantial theory and investor profit theory according to the taxation theory. Also, it is necessary to import acquisition cost of beneficiary certificate while importing the concept of beneficiary certificate according to the tax law and considering this as a stock.