법인세법상 자본거래와 손익거래의 혼합거래 과세에 관한 연구

Abstract

Among several types of corporate transactions, there are transactions that have both capital transaction and profit & loss transaction elements. Out of the many kinds of mixed transactions, this study focused on dividends in kind and debt-equity swap. It suggested the following legislative solutions in the perspective of recognizing the profits and losses that result from the profit & loss transactions in these mixed transactions. Beforehand, provisions of law should be made that under corporate tax law, profits from mixed transactions such as dividends in kind and debt- equity swap should be excluded from the provision of non-inclusion of gains from capital transactions in gross income. Also, losses from these mixed transactions should be excluded from the provision of non-inclusion of losses from capital transactions in deductible expenses. Moreover, because the current law provisions related to these mixed transactions have no sufficient legal basis for taxing these transactions or have need for institutional improvements, the following legislative modifications must be made. First, the law provisions for taxation should be clearly stipulated regarding the capital gains and losses from the assets of the corporation paying the dividends in kind. If these assets are not taxed at this level, the unrealized capital gains will forever be excluded from taxation. In this case, it may be desirable to evaluate the price of the assets using the market price principle. Secondly, the scheme of tax-qualified dividends in kind should be newly established, as this would defer the taxation of dividend in kind and thus enhance its applicability. In other words, if an asset transfer using dividends in kind occurs between the wholly owning parent company and the wholly owned subsidiary company, this needs to beconsidered as a transfer at book value so that they will not have the burden of taxation. Thirdly, both the exceptive provision of non-inclusion of gains from capital transactions in gross income and the enforcement decree regarding the scope of earnings should be maintained as it is in order to tax income from discharge of indebtedness. Also, the mark-to-market valuation has to be applied to the issuing price of the debtor’s new stocks. Meanwhile, special tax treatment related to the taxation of the income from discharge of indebtedness should be unified into tax deferral for a certain period of time and then a gradual reduction needs to be considered in the mid- to long-term. Fourthly, legal modifications should be made in the aspect of acknowledging the creditor’s loan loss from debt-equity swap as partial bad debts. In the perspective of the creditor, it is difficult to meet the requirements for a donation, and even if the provision concerning donations can be applied, this donation falls under non-designated donations and it is consequently impossible to include in deductible expenses. In addition, if partial bad debts are recognized in order to collect even a part of the loans, this will better reflect the financial status of the creditor, which will contribute towards accurately calculating taxable income.