의제배당 과세의 구조에 대한 비판적 검토 ― 청산분배를 중심으로 ―

Abstract

When a corporation experiences capital reduction, dissolution, merger, or division, shareholders realize their unrealized income accumulated in the stock. This raises the issue of what kind of income it is for tax purposes. Is it dividend income or capital gain from the sale of stock? To unravel this issue, we should first answer the question of whether dividend income and capital gain from the sale of stock are different, and if different, how to distinguish between the two. My arguments on this issue are as follows: The fundamental token of dividend income is not a change in the economic situation of the shareholders but a change in the economic change of the corporation, that is, the decrease in the retained income due to the leakage of the corporation’s assets. Dividend is thus the case in which the corporation’s retained income is actually distributed to the shareholders and the corporation shrinks, whereas the sale of stock is merely to sell the rights to the retained income among the shareholders and the corporation does not shrink. Since there is a fundamental difference between the two, the tax law can only treat them differently, and that discrimination has a certain effectiveness in the real market. On this basis, I analyzed the issue of shareholder taxation focusing on liquidating distribution. The conclusions drawn here are as follows: First, US law classifies all of the income realized to shareholders simply as capital gain, but it is a wrong law that turns all of the corporation’s retained income (shareholders’ dividend income) into capital gain. Second, Korean law classifies them simply as “deemed dividend.” It is also a wrong law that, when there is a change in shareholder in the middle, turns all or part of the corporation’s retained income (shareholders’ dividend income) into capital gain. Third, in order to solve the problem, the liquidating distribution should be treated as “a combination of dividend and sale of stock” and one of the legislation that accurately implements such a framework is Japanese law. Therefore, I insist on reforming the structure of the deemed dividend in Korean tax law. The theoretical framework is that when the corporation’s residual assets (sum of paid-in capital and retained income) is distributed, the portion of the retained income should be treated as the dividend income of the shareholders and the portion of the paid-in capital as the payment for the stock surrendered. There are two basic directions for implementing this framework, and the choice requires a number of additional considerations. In particular, it is important to consider that this reform is not just an issue of liquidating distribution, but also has a comprehensive implications that affects other types of deemed dividends arising from capital reduction, merger and corporate division. This article is intended to provide a theoretical framework and two basic directions as a foundation for a later study to put forward a concrete reform legislation.