동업기업과 동업자간의 거래에 대한 과세상 쟁점

Abstract

This article evaluates and suggests ways to improve the taxation on transactions between a partner and a partnership as follows;First, current factors for determining whether a partner is receiving a payment in his capacity as a nonpartner when a partnership have a transaction with a partner are easily manipulated by a partnership or a partner. For a remedy, the factors should be both entrepreneurial risk and control. The entrepreneurial risk standard requires that a partner is subject to a significant entrepreneurial risk as to both the amount and fact of payment by allocation and distribution of fixed percentage of partnership income to the partner in order to treat the partner performing services for a partnership in a partner capacity. The control standard requires that a service-providing partner control hiring and firing with respect to the transaction by holding majority interests of the partnership or is acting according to the partnership agreement in order to treat the partner performing services for a partnership in a partner capacity. Second, an additional income treatment for the related party transaction under Corporate Income Tax Law applies to a transaction between a partnership and a partner. However the treatment affects the service-providing partner himself (herself) and other partners unrelated with the partner. In order for a remedy, related parties are determined on the basis of a relationship between the service-providing partner and other partner individually rather than that between the service-providing partner and the partnership. For lessening the complexity arising from this suggestion, the exception should be allowed for a partnership with a number of partners.