유동화 금융자산의 양도와 과세

Abstract

This paper involves the differences of tax consequences, depending on whether the transfer of financial assets by sponsor to securitization vehicles is characterized as a sale or a financing, and the tax standards distinguishing a sale from a financing. The conclusion to be drawn here is as follows:The characterization of the transfer thereof as a sale or a financing influences the recognition of tax ownership, the characterization of gain from the transfer, the recognition of bad debt allowances, the deductibility of bad debt expenses, the limitations of foreign tax credits, the traceability of tax claims to successors and the applicability of ‘Securities Exchange Tax’. The following standards will work as general tax standards of distinguishing a sale from a financing in the context of securitization transactions. First, the substantial burden and benefits of securitization assets should be shifted from sponsor to securitization vehicles. Second, sponsor may not have control of securitization assets after transfer. Third, the part of securitization assets or securitization assets pools may be transferred to securitization vehicles but the tax standards thereof should be applied to the transferred securitization assets on an entire basis. The general tax standards thereof may well be transformed into concrete tax standards according to the following transaction patterns. First, the transfer with no strings means the transfer after which the sponsor has no continuing links such as servicing agreements, make-up arrangements etc., which will be characterized as a sale. Second, there may be servicing agreement, clean-up-call agreement or repurchase(or exchange) obligations due to breach of representations between sponsor and securitization vehicles as continuing links, which may not be against the sale treatment in general. Third, credit enhancement arrangements in itself may not be against the sale treatment, unless sponsor is already in some serious delinquencies or other risk-related symptoms. Fourth, the sponsor’s guarantees relating to prepayment and market value in itself may not be against the sale treatment, unless there is substantial certainty that the transferred assets will be back to the sponsor in case of guarantee relating to market value. Fifth, the call option at the sponsor’s discretion under the specified condition in itself may not be against the sale treatment, unless the exercise of the call option is economically compelled at the time of transfer and the sponsor can exercise the option at his full discretion. And if the sponsor has the put option and call option under the same exercise price spontaneously, it will be appropriate to characterize the transfer as a financing. Sixth, the sponsor may have substitution rights to substitute the similar assets for the securitization assets in the vehicles at his disposal, which will be characterized as a financing factor unless the substitution rights is for replacing the defective securitization assets with the similar assets. Seventh, it will be easier to characterize the transfer with the sponsor’s retention of interest rate strips as a sale of the other interests than the transfer with put option relating to the risks of prepayment. Eighth, if the amount of excess servicing beyond reasonable compensation represents a fixed number of basis points of interest on securitization assets, the amount will be recharacterized as stripped coupons, which may not be against the sale treatment. If not, the amount will be recharacterized as the sponsor’s continuing links with the securitization assets, which is likely to be a financing factor. Ninth, there may be swap contract between the sponsor and securitization vehicles, which in itself may not be against the sale treatment, unless the payments under the swap contract are linked to those of securitization assets or the swap contract is characterized as total return swap.