공익법인의 주식 보유 관련 세제 개선방안

Abstract

As a tax benefit granted to public interest corporations, Articles 16 and 48 of the Inheritance Tax and Gift Tax Act(“ITGTA”) prevent inheritance tax and gift tax from being levied on the property contributed to public interest corporations. In applying these clauses, the most controversial part in practice is the stocks acquired by public interest corporations. Since January 1, 1991, ITGTA has established a stock holding limit for public interest corporations, and the amount exceeding that limit is subject to inheritance tax or gift tax. Until now, more than 30 years later, controversy has continued over whether to set a stock holding limit for public interest corporations and, if so, to what extent. Such controversy is fundamentally caused by the conflict between the opinions that the stock holding limit of public interest corporations should be abolished or increased, and the opinion that the limit should be reduced. The former cites the vitalization of public interest corporations as the main reason. On the other hand, the latter cites the fact that lots of entrepreneurs are still abusing public interest corporations as a means of indirect control over domestic corporations while evading inheritance tax or gift tax as the main basis. However, there is no reason to restrict stock contributions to public interest corporations if a system is established to prevent the abuse of public interest corporations as a means of indirect control, such as restrictions on voting rights. Moreover, the recently amended Monopoly Regulation and Fair Trade Act allows the voting rights up to 15 percent even in the case of public interest corporations that have a special relationship with a business conglomerate subject to limitations on cross-shareholding. In line with this, it is necessary to increase the share holding limit of public interest corporations to at least 15 percent under the ITGTA. Meanwhile, Article 49 of the ITGTA, which stipulates the obligation to dispose of stocks exceeding 5 percent of the total number of issued and outstanding stocks with voting rights held by public interest corporations as of December 31, 1996, should be deleted because it doesn’t need to be maintained anymore in terms of textual interpretation or related legal principles. Article 78(4) of the ITGTA, which stipulates the imposition of penalty tax in case of violation of such a disposition obligation, should likewise be deleted, for the same reason. In the case where the same person contributes stocks of the same domestic corporation to several public interest corporations with different holding limits, it is necessary to stipulate explicit provisions in the ITGTA regarding the calculation method of the excess holding limit. Also, in relation to the gift tax on excess stock holdings, it is not reasonable to immediately impose gift tax on the excess in the case of capital increase or reduction that occurs in a situation where a public interest corporation cannot be involved in decision-making. In such a case, it is appropriate to give a certain grace period to the public interest corporation so that it can dispose of the excess stock, and to impose gift tax only in case of violating the obligation to dispose of it.