동업기업 과세특례상 현물출자 및 노무출자의 구분과 과세상의 쟁점

This paper evaluates and suggests ways to improve taxation on the contribution of property or service to a partnership, under the special tax treatments for partnerships and partners which has been legislated in Korean Tax Laws in 2007 and become effective in 2009. First, it is necessary to provide a standard of distinction between contribution of property and contribution of service since their tax consequences are not the same. This paper proposes that a contribution should be classified into a contribution of property, if it meets both exchange and property requirements, or otherwise it is a contribution of service. Under the exchange requirement, there must be a mutual transfer of one thing for another, a choice of each party to the transaction and ownership rights for the contributing partner right before the contribution. Under the property requirement, value, enforceability, and separate existence of the rights are necessary. Second, in determining the fair market value of contribution in accordance with Estate and Gift Tax Law where the market does not exist, prepaid expenses of the partnership which stand for value of future service to partnership should be included in asset valuation. In case that service period and partnership period are not definite, prepaid expenses should be valued less than permanent annuity, considering the uncertainty of continuity of partnership and partners.