출자전환 회생채권의 대손금과 대손세액공제 개선에 관한 연구 ― 대법원 2018.6.28. 선고 2017두68295판결 ―

Abstract

The Debtor Rehabilitation and Bankruptcy Act(DRBA) supports corporations in financial hardship by collectively coordinating legal status between debtors and creditors. For example, DRBA §206 ① encourages reorganizing corporations in debt to be restructured, which are allowed to convert debts into capital without increasing assets. In practice, it is mostly used that corporations in rehabilitation procedure amalgamate shares and reduce capital immediately after issuing of new shares in the process of debt-equity swap. However, both the taxation authorities and the judicial authorities have not reached an agreement on this case; in other words, when creditors providing goods or services coordinate accounts receivables with corporations in rehabilitation procedure, it has been controversial whether the bad debt expense deduction of Value-Added Tax Act(VATA) are allowed. The judicial precedent of this case permitted bad debt expense deduction, because there was no difference between the exemption from obligation and the result that accounts receivables went through the process of debt-equity swap and capital reduction without consideration, and because the claims are uncollectibly fixed, for creditors would never exercise stockholder’s rights. While the range of bad debt expense deduction of VATA had applied the clause of Corporation Tax Act(CTA) in the past, a new clause concerned was created in February 12, 2019. Nevertheless, it is necessary to make the reasons of bad debt of VATA and CTA comprehensive and consistent. Furthermore, it is required to enact independent tax clauses on bad debt of restructuring corporations to Special Tax Treatment Control Law in order that corporations in the procedure can be systematically and efficiently supported by concerning institutions.