합병 기타 기업결합의 과세문제

Abstract

Korean tax rules for corporate merger, division, share exchange and other corporate restructuring have been completely rewritten, effective July 1, 2010. The paper address the issues for corporate merger, share exchange and other forms of corporate combinations. The essential change is that the new rules made par value of shares irrelevant in corporate restructuring while the old rules indirectly permitted deferral of taxes on unrealized or built-in gains by reference to the par value of the shares. Under the old rules, parties to corporate restructuring could manipulate the par value of the shares issued in connection with the merger, and eliminate the statutory taxable income. The new rules make this manipulation unnecessary because the law directly defers taxes on unrealized gains. The change is in the right direction, but the new law also leaves many problems in interpreting and administering it. The paper first reviews these implementation issues for the extinct corporations and its shareholders as well as the surviving corporation. It then extends the analysis to share exchange, share transfer and the triangular mergers.