회사채에 관한 명의신탁 증여의제 규정 적용에 있어서의 쟁점

Abstract

Among the subjects of the borrowed-name transactions, the owner’s name related to the property and business registration name are meaningful. And the most problematic areas in practice related to the former are real estate, stocks, corporate bonds and deposits(financial transactions). As there have been many discussions about title trusts regarding real estate, stocks, deposits, etc., there is little discussion about title trusts regarding corporate bonds. In this article, the discussion will be limited to cases of corporate bonds subject to borrowed-name transactions. The bond registration system for corporate bonds was enacted pursuant to Article 6 of the REGISTRATION OF BONDS AND DEBENTURES ACT enacted and enforced on January 1, 1970., and nearly all corporate bonds are currently issued by the bond registration system under the REGISTRATION OF BONDS AND DEBENTURES ACT. There is a collective bond registration system, which combines the registration system and deposit system in an account of a securities company designated by a creditor with the creditor’s name on the Bond Register as the KOREA SECURITIES DEPOSITORY. And there is an individual registration system, which registers the creditor’s name on the Bond Register and issues the registration of the actual creditor’s name directly to the creditor. Currently, most corporate bonds are traded through a collective registration system. The electronic registration system includes electronic registration under ACT ON ISSUANCE AND DISTRIBUTION OF SHORT-TERM ELECTRONIC BONDS, ETC., which is a current law, and electronic registration under ACT ON ELECTRONIC REGISTRATION OF STOCKS, BONDS, ETC., which will be implemented on September 16, 2019. And in relation to the separation of external and internal rights from the title trusts with the corporate bonds, generally the rights in the external relationship will be attributed to the the title trustee. If tax is avoided by avoiding tax avoidance through borrowed-name transactions, the principle of Actual Taxation(Article 14, Paragraph 1 of the FRAMEWORK ACT ON NATIONAL TAXES) shall apply. In order to apply the principle of Actual Taxation, it requires that a title trustee must have an external consistent tax, and then no real return is attributed to that person. So first of all, it is necessary to consider the problem of determining who is taxed externally, which is called ‘determination of the contracting party’. Generally, in a title trusts of corporate bonds, the title trustee must be regarded as a contracting party. In general, bearer bonds are not applicable in connection with the application of the provisions of Article 45－2 (1) of Article 45 of the INHERITANCE TAX AND GIFT TAX ACT. In general, bearer bonds, registered bonds and bearer bonds, Registered electronic short-term bonds, and electronically registered bonds under the Electronic Securities Act shall apply. In relation to the application of Article 45－2 paragraph 1 of the INHERITANCE TAX AND GIFT TAX ACT, general bearer bonds are not applied, but registered bonds and bearer bonds under the REGISTRATION OF BONDS AND DEBENTURES ACT and electronic short-term bonds under the ACT ON ISSUANCE AND DISTRIBUTION OF SHORT-TERM ELECTRONIC BONDS, ETC. and electronic registered bonds under the ACT ON ELECTRONIC REGISTRATION OF STOCKS, BONDS, ETC. are applied. In addition, there is criticism that there are various problems concerning the Article 45-2 paragraph 1 of the INHERITANCE TAX AND GIFT TAX ACT. Therefore, it is necessary to suppress the repetition of gift tax due to the above regulations as much as possible. In judging the existence of any intention of avoiding taxes in relation to this clause, a measure may be enacted to limit the scope of tax between identical title trusters and trustees to only the extent of tax due to the acquisition of stocks or bonds by the initial title trust. As a practical measure, the following provisions may be added to Article 45－2 (1) 1(the provision of no gift tax penalty if there is no intention of avoiding taxes) of the INHERITANCE TAX AND GIFT TAX ACT： ‘However, between the same actual owner and the title holder, it is judged whether there is a intention of avoiding taxes based only on the first property acquisition act[This is not the case if there is an act of acquiring new property due to a separate title trust that is not based on the property that was the object of the first title trust between the same actual owner and the title holder], and it is assumed that there is no intention of avoiding taxes for the subsequent acquisition of property by title trust. According to the new amendment above, if the title truster acquires the convertible bonds which is applied the Article 45－2 paragraph 1 of the INHERITANCE TAX AND GIFT TAX ACT in the name of the title trustee, and converts the convertible bonds into stocks in the name of the title trustee, only title trusts for bonds will be established, and no title trusts will be established for stocks. However, under the current law, it is not so simple to solve the problem of imposing the gift taxes on the double, such as the conversion of the convertible bonds and the convertible bonds. At present, these issues are pending in the Supreme Court(2016Du1165).We look forward to a decision being made to prevent double taxation, such as the new revision.