동업기업에의 출자와 관련한 과세상의 쟁점

This article evaluates and suggests ways to improve the taxation of contri- bution 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, theoretically, the contribution to a partnership is treated as an taxable event under an exchange approach, but as an non-taxable event under the pool of capital doctrine. This article proposes that contribution should not be taxed by applying the pooling concept if a partnership is formed for the business purpose or profit interests are given, otherwise, it should be taxed. Second, even if the contribution is taxed, it is undesirable that a partnership recognizes gain on appreciated properties under the assumption of transferring partnership assets to the contributing partner in accordance with an aggregate theory, since cash compensation is much more common than compensation in the form of an undivided interest in all of the payor's assets. Third, the definition and the differences between capital interests and profit interests should be provided in tax laws with treatments for preventing disguised capital interests or the shifting of capital interests among the partners. Fourth, this article proposes that, where the interests are subject to a risk of forfeiture, a service provider should recognize income when service is rendered, rather than at the time of receiving interests or when the interests is no longer subject to a risk of forfeiture. Also it is required to provide treatments for a forfeiture and a status of a service provider.