사실상 합병에 대한 적정과세방안

Abstract

This paper evaluates and suggests ways to improve the taxation on defacto merger in that the tax effect of de facto merger should be identical tothat of statutory merger in order to maintain tax neutrality and substanceover form as follows;First, the provisions for taxing a gain on merger should be abolishedsince the gain represents an unrealized increase in asset value and amerging corporation in a de facto merger is not taxed under the currentlaw. Second, special tax treatments for a certain reorganization should applyfor a de facto merger in case that the requirements similar to those in astatutory merger are met. A de facto merger which is made by transferringsubstantially all assets even though some assets are not transferred shouldbe treated as tax-free. Third, tax-favored merger for which statutory requirements are met shouldbe substituted with tax-free merger as in Internal Revenue Code of theUnited States of America in order for supporting and promoting businessreorganizations, since even in the merger which meets the requirements forspecial tax treatments, it can be possible to be taxed to the partiesinterested to the merger. Fourth, the taxation on an unfair merger, and succession of operatinglosses and tax reconciliation items should apply in a de facto merger as ina statutory merger. Finally, a merger with a completely controlled subsidiary should betax-free even though tax incentive requirements are not met, and aliquidating distribution made by completely controlled subsidiary shoud betreated tax-free as in a de facto merger.