인적분할 및 현물출자 결합을 통한 지주회사 전환 시 과세문제

Abstract

This study examined the reason and need for the holding company transition through spin-offs and investment in kind and after finding the implications through comparison and analysis of reorganization taxation in the US that directly influenced Korea's company restructuring taxation, it examined the interpretation method of the tax law related to the problems occurring during spin-offs and investment in kind integrated transactions and proposed a theory of legislation concerning this. In the corporate governance of Korea's corporate groups, in the case of establishing and transforming holding companies through spin-offs, the investment in kind transaction between the holding company and the affiliate company's shareholders is essentially united. There arises a few problems in the integration process of the spin-offs and investment in kind transactions with one being the problem arising from investment in kind participation rate and exchange ratio of the affiliate company's shareholders. The other is the problem arising from the change of economic substance. The participation rate of the affiliate company's shareholders during the investment in kind transaction is totally decided through the subjective assessment of the shareholders, but exchange ratio is decided by the assessment of the stocks in transaction. In the process of one company becoming two during the spin-off, the time difference between relisting and initial public offering occurs and there are also problems with difference in assessment methods between tax law and other laws. Intrinsically, the problem arises from the approach of trying to regulate the assessment method in detail while also recognizing that a precise stock value calculation is impossible. In order to fundamentally solve this problem, it seems more desirable to legislate after converting the approach to a principle centered approach. As it is not easy to change the tax law system in the short term, the current tax law must be partially supplemented. Although the same assessment method or other assessment methods can be applied in the case of an unlisted company existing temporarily in the process of one company (listed company) being divided into two companies, a legislation to coordinate this is required. Furthermore, in the cases of the assessment method of the tax law and assessment method of the capital market law being different, the assessment method of the capital market law must be accommodated by the tax law. To add, the holding company transition through the integration of spin-off and investment in kind not only involves formal change, but also changes of economic substance. In this case, there can be a problem of the possibility of directly applying substance over form principle regarding the step transaction of Clause 3, Article 14 of the Basic Law for National Taxes. The core logic of tax postponement is not to use as tax instrument the change of form without change in economic substance, but here, the economic substance has changed. However, the regulation of Clause 2, Section 2, Article 38 of the Tax Reduction and Exemption Control Act is the regulation of giving special provisions of tax to achieve the policy objective of improvement of corporate governance of corporate groups even if there is change of economic substance. With the regulations being continuously eased after the introduction of the holding company system in 1999 and considering the encouragement of establishment and transition of holding companies, the special provisions on tax must be actively applied despite the change in economic substance. Related to the holding company transition through spin-offs and investment in kind integration, the current tax law has no uniformity as it is in the structure of fundamental law and special law to make it difficult to uniformly interpret the law. Ultimately, we need a united tax law system like the reorganization taw law of the US tax law system. Moreover, as the holding company itself is value neutral, it must be allowed to be freely established, but it is desirable to eliminate both the benefits of regulation as well as that of special law.