주식의 현물배당에 의한 배당형 인적분할세제의 도입방안

Abstract

The Korean Commercial Code regulates the corporate division as an independent system under Article 530(2) of the Code. The Corporate Tax Act provides special taxation treatment in Article 46 et seq. based on the premise of the corporate division system under the Commercial Code. Therefore, the tax deferral can only be applied to corporate division conducted in accordance with Article 530(2) et seq. of the Commercial Code. However, the same effect can be achieved through other transaction types, i.e., a shareholder-dividing corporate division can be accomplished through an in-kind distribution of shares of a subsidiary established by a corporation-dividing corporate division or in-kind contribution, and a corporation-dividing corporate division can be accomplished through an in-kind contribution. In the case of the latter, Article 47(2) of the Corporate Tax Act provides for the same tax regime in parallel with the special tax regime for a corporation-diving corporate division. However, in the case of the former, although dividends in kind have been permitted by the 2011 amendment to the Commercial Code, it is difficult to find cases of de facto corporate division in this way because there is no special tax regime comparable to a shareholder dividing corporate division. There are good reasons to consider the introduction of a spin-off type tax regime in practice for the following reasons. First, in general, being able to convert a corporate-dividing corporate division into a shareholder-dividing corporate division by way of spin-off can contribute significantly to flexible reorganization. In fact, the 2011 amendments to the Commercial Code allow for dividends in kind, making such transactions possible in practice. However, it is difficult to realize such a transaction in practice if the tax deferral effect is not granted. Second, the need for a spin-off tax regime is recognized as a way to compensate minority shareholders for losses caused by a corporation-dividing corporate division and subsequent subsidiary listings. These transactions occur when a company spins off a highly profitable business division into a wholly owned subsidiary and then goes public to raise capital from investors other than the existing parent company shareholders. In the process, the rights of the parent company shareholders are violated and the value of the parent company’s shares decreases, which has become a significant problem. As a solution, it is being considered that the dividing corporation will distribute the subsidiary shares acquired in the spin-off in kind to the shareholders, with the result being no different from a spin-off type corporate division. However, in order to implement the above solution, appropriate tax deferral measures are required. First of all, it is necessary to overhaul the structure of the tax system of both the corporate division system to improve harmonization. Failure to do so could lead to abusive tax avoidance transactions. The next step is to introduce a spin-off type tax regime by providing that the taxation at the dividing corporation level and the taxation at the shareholder level can be deferred when the shares of the wholly-owned corporation held by the dividing corporation are distributed under the same requirements as the special tax regime for a shareholder-dividing corporate division. However, as mentioned above, it is important to emphasize that in the actual implementation stage, the most important consideration is to design the system so that there is no difference in the tax effect between a spin-off type corporate division and a shareholder-dividing corporate division.