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Are Treasury Stocks Nonperforming Assets for Tax Purposes? :Theoretical and Practical Implications of Supreme Court Ruling 2023Du31263 (April 27, 2023)
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자기주식 취득과 무수익 자산 과세 ― 대법원 2023. 4. 27. 선고 2023두31263 판결 ―

논문 기본 정보

Type
Academic journal
Author
KIM, BeomJune (서울시립대학교)
Journal
한국세무사회 부설 한국조세연구소 Tax and Accounting Review Vol.13 No.3 KCI Accredited Journals
Published
2024.8
Pages
3 - 44 (42page)

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Are Treasury Stocks Nonperforming Assets for Tax Purposes? :Theoretical and Practical Implications of Supreme Court Ruling 2023Du31263 (April 27, 2023)
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Abstract· Keywords

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The objective of this article is to analyze the Supreme Court of Korea (“SCK”) decisions on tax treatment of treasury stocks. The main ideas of this article are summarized as follows.
Before the 2012 Commercial Act, it was strictly prohibited for a company to acquire treasury shares so that the acquisition of treasury stocks was likely to be invalid in most cases. Therefore, the National Tax Service (“NTS”) had a tendency to levy tax impositions on the acquiring company based on the assumption that treasury stock transactions were invalid. Also, the SCK followed this position.
The 2012 Commercial Act relaxed treasury stock regulations, which led to the result that treasury share transactions were valid in many cases. In response to such a change, the NTS has argued that treasury stocks fall under nonperforming assets for tax purposes in order to apply Article 52 of the Corporate Income Tax Act to the acquiring company. The SCK Ruling 2023Du31263 (April 27, 2023, “Ruling”) rejected the NTS’ position by providing two legal grounds, that is, the improvement of stock value and the possibility of capital gains resulting from acquiring treasury shares. The latter one is in regard to the “exchange value” requirement of nonperforming assets. The Ruling will have an impact on future practices together with the SCK Ruling 2017Du44084 Decision (August 20, 2020, “STIC Decision”).
However, there are several theoretical flaws in the SCK’s position. First, even though the conclusion of the Ruling was rooted in the concept of business relatedness, the SCK did not provide specific explanations. Second, the legal nature or status of business relatedness is not clear. Third, the SCK has rendered contradictory decisions in the Ruling and the STIC Decision. In order to solve such problems, the SCK should clarify the characteristic of business relatedness, establish specific criteria for treasury stock transactions, and provide concrete legal grounds for whether treasury stocks are nonperforming assets in its subsequent decisions.
Finally, it is likely that the NTS will apply the overpayment clause to valid treasury stock transactions between related parties. In this case, the requirement of economical reasonableness will be a key issue and the SCK should provide specific factors in future cases.
#자기주식 #무수익 자산 #업무관련성 #사용가치 #교환가치 #treasury shares #nonperforming assets #business relatedness #use value #exchange value

Contents

국문초록
Ⅰ. 서론
Ⅱ. 대상 판결의 사실관계와 판시
Ⅲ. 자기주식 취득에 관한 상법 개정과 과세관청의 대응
Ⅳ. 무수익 자산의 정의․요건 및 대법원 입장의 검토
Ⅴ. 대상 판결의 이론적․실무적 의미와 과제
Ⅵ. 결론
參考文獻
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