자본구조조정 및 채무조정의 과세효과에 관한 고찰

A corporation always may be put in the situation where it is required to change its financial structure in the method of changing the ratio of equity and debt or exchange between equity and debt for the purpose of accomplishing the optimal business results. Although this kind of recapitalization and debt adjustment is not to change the size and ownership structure of the corporation, differently as in the case of corporate merger or division, but is to change its internal structure of equity and debt, it is not at all a less important ‘corporate reorganization’than the corporate merger or division in that a corporation is inevitably compelled from time to time to conduct such an activity to sustain and develop as a profitable business entity. If this kind of recapitalization or debt adjustment is treated as an ordinary taxable event in the aspect of taxation and income arising therefrom to the corporation or its shareholders and creditors, such as ‘forgiveness of indebtedness’, capital gains, deemed dividends, gift, etc. are taxed as such, it may be impossible to perform the reorganization of a corporation through these character of activities. Many developed countries including U.S and Japan understood this issue from long ago, and have allowed special tax treatment, i.e., tax deferral for these activities. In considering that the scale of tax burden imposed on the conduct of business by a corporation enterprise in the globalized market functions as a key factor in determining the competitive power of the enterprise, it is recommendable for our country to follow the trends of the developed countries. Therefore, the current system under the Corporate Income Tax Law and the Tax Exemption and Reduction Control Law which allows a limited tax exemption or deferral benefit to the special type of debt for equity exchange and debt adjustment should be improved in its essence. For this purpose, it is necessary to introduce the concept of “qualified debt for stock exchange" and “qualified stock for stock exchange" in the Corporate Income Tax Law that means a transaction having the character ofbeing conducted for the purpose of accomplishing the optimal business results of the enterprise concerned and to allow the deferral of taxation on the income arising such ‘qualified’ transactions. It is also required to introduce the concept of “qualified debt adjustment" of the same character as the ‘qualified recapitalization transaction’ and to allow the same context of deferral of taxation on the income arising therefrom and to treat the loss of value ofassets resulting from the qualified debt adjustment transaction as ‘bad debt’ instead of gift or entertainment expenses.