지원사업
학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
오류제보하기
Tax deferral on contribution in kind has a side effect of “retroactive double taxation,” i.e. double-taxing even unrealized gain that has accrued before the contribution in kind. This happens because the unrealized gain is preserved in two rights: the pre-existing asset and the newly created stock.
An easy solution to this problem is to eliminate the tax on one of the two rights, but this measure finally results in complete elimination of the tax. Taxing on both rights is indispensible. I argue that, in order to simultaneously prevent the “retroactive double taxation” and the tax avoidance, we must make the changes of asset and stock reflect each other at all times. This perfect solution, however, can never be implemented in the real world, and I arrive at a kind of “impossibility theorem.” Thus, an imperfect measure like the one that has been recently enacted in Korea is an improvement on the one hand, but on the other hand it is a change for the worse.
In fact, the “retroactive double taxation” is universally embedded in tax deferral, and it is, so to speak, like “the other side” of tax deferral. This phenomenon, however, emerges only if a transaction satisfies three requirements: i) The transferee issues stocks in exchange for asset, ii) the transferor (not the shareholders of the transferor) receives the stocks, and iii) this transaction is allowed tax deferral. In Korean law, all these requirements are satisfied not only in the contribution in kind and Ausgliederung (so-called “physical division”) but also in the exchange or transfer of stocks. However, it is difficult to say that the measure for the former in Korean law should be extended to the latter, because the measure itself is uncertain to be desirable.
An easy solution to this problem is to eliminate the tax on one of the two rights, but this measure finally results in complete elimination of the tax. Taxing on both rights is indispensible. I argue that, in order to simultaneously prevent the “retroactive double taxation” and the tax avoidance, we must make the changes of asset and stock reflect each other at all times. This perfect solution, however, can never be implemented in the real world, and I arrive at a kind of “impossibility theorem.” Thus, an imperfect measure like the one that has been recently enacted in Korea is an improvement on the one hand, but on the other hand it is a change for the worse.
In fact, the “retroactive double taxation” is universally embedded in tax deferral, and it is, so to speak, like “the other side” of tax deferral. This phenomenon, however, emerges only if a transaction satisfies three requirements: i) The transferee issues stocks in exchange for asset, ii) the transferor (not the shareholders of the transferor) receives the stocks, and iii) this transaction is allowed tax deferral. In Korean law, all these requirements are satisfied not only in the contribution in kind and Ausgliederung (so-called “physical division”) but also in the exchange or transfer of stocks. However, it is difficult to say that the measure for the former in Korean law should be extended to the latter, because the measure itself is uncertain to be desirable.
목차
Ⅰ. 들어가며
Ⅱ. 문제와 그 성격
Ⅲ. 손쉬운 해결책의 실패, 그리고 완벽한 해결책의 불가능성
Ⅳ. 우리 법의 불완전한 대책과 그 문제점
Ⅴ. 소급적 이중과세의 보편성과 그 발생조건
Ⅵ. 요약
〈참고문헌〉
〈Abstract〉
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UCI(KEPA) : I410-ECN-0101-2014-320-002876593