연결납세에 있어서 연결세액의 분담에 관한 연구

Abstract

This article evaluates and suggests ways to improve the allocation methodof the consolidated tax liability determined under the consolidated returnsystem which has been legislated in Korean tax laws in 2008 and becomeeffective in 2010 as follows. First, the allocation method which a member with income pays a memberwith loss for using the loss is not allowed under the current consolidatedreturn system. This can not reflect economic reality of the allocation. It isadvisable that wait-and-see method and percentage method be allowed forthe tax purposes. Second, in case that the amount allocated for the tax purpose is notidentical to the amount really burdened between members of the sameconsolidated group, the current system is silent whether the differenceshould be treated as contribution or distribution among members, or asreceivables from or payables to other member(s). Thecontribution-distribution method is proper and desirable in that the differenceis not anticipated to be paid. Third, business law is silent for the proper method of allocatingconsolidated tax liability. It is suggested that creditors and investors wholoan and invest after knowing the existence of the tax sharing agreementamong members or tax allocation standards and practice should not haveany right to assert reallocation by adopting the concept of businessjudgment. However creditors who exist at the allocation should be protected on the basis of equity standards by sharing the gain on using the loss of amember in determining the consolidated tax liability equally betweenmembers giving and taking the benefit of loss pooling.