금융소득 과세에 관한 연구- 이자소득과 자본이득의 구분을 중심으로 -

Abstract

Financial instruments, as sources of financial incomes, are highly diverse even if only those traded in the Korean financial markets are counted. As financial instruments are diverse, so are financial incomes. It is very important for tax purposes to classify financial incomes according to their tax attributes because the current tax rules specify interest and dividend income to be taxable, while financial incomes such as the gains from trading stocks, bonds, and derivatives are tax exempt. However, such differential taxation may provide aggressive taxpayers with an opportunity to avoid taxes by executing a well-calculated tax planning strategy, giving rise to socially undesirable consequences. In particular, it opens up the possibility that taxpayers could convert in-substance interest or dividend income to the superficial tax-free gains, thus avoiding taxes. As a result, policy needs arise to prevent aggressive taxpayers from carrying out tax-avoiding strategies by providing for unambiguous criteria by which the tax-unfavored financial incomes (i.e., interest and dividend) are clearly distinguished from the tax-favored financial incomes (i.e, gains from trading stocks, bonds, and derivatives) according to the economic substance of the transactions that the taxpayers engage in. The current Korean income tax law, however, does not provide for such criteria on a conceptual level, and there are a great deal of rooms for disputes between taxpayers and the tax authority with respect to how financial incomes should be classified for tax purposes. In fact, it is not uncommon for such disputes to arise in practice. The main purpose of this paper is to present a conceptual criterion by which the taxable financial incomes can be identified distinctively from the tax-exempt financial incomes. It would greatly help reduce the occurrences of the disputes between taxpayers and the tax authority, and thereby alleviate the social costs arising from the disputes. As such criterion, this paper suggests adopting a little test of checking “whether taxpayers bear investment risks in order to earn their financial incomes.” This paper also confirms that a similar criterion indeed has already been applied, although implicitly, to a couple of cases in which taxpayers and the tax authority had disagreements on how a specific financial income should be taxed. We further apply the same criterion to the impending case so-called “Yen Swap Time Deposits,” and find that the gains from trading the forward currency contracts that take up the major portion of the Yen Swap Time Deposit transaction are in substance “riskless investment income” because the contracts are so designed as to be bundled up with Yen time deposits. This indicates that it is appropriate for the authority to tax the gains as if they were interest income.