조세특례제한법상 동업기업의 분배에 관한 연구

This article evaluates and suggests ways to improve the provisions for the distribution under partnership taxation as follows;First, currently, the contribution and the distribution to a partnership are treated as taxable events under an exchange approach. This treatment is not consistent with aggregate theory, increases tax compliance and administration costs, and allows tax avoidance opportunities where the fair market value of the distributed property is below its book value. For a remedy, the contribution and distribution to a partnership are treated as non-taxable events until the property is disposed to a third party. Second, the distribution paid in excess of partner's basis of partner- ship interests is treated as deemed dividends to the partner, whereas the liquidating distribution below the partner's basis is treated as capital loss. However it is possible to avoid this dividend treatment by trans- ferring the partnership interests to another partner and the partnership makes a distribution to the buying partner. Moreover, the distribution paid in excess of a withdrawing partner's share of the fair market value of partnership property could be characterized as mutual insurance and compensation for past service, however, the excess is also treated as dividends. For a remedy, current treatment of capital loss should be eliminated, or dividend treatment should be replaced with capital gain treatment. And the distribution paid in excess of a withdrawing partner's share of the fair market value of partnership property should be treated as distributive share of partnership income. Third, the distribution paid in excess of partner's basis of the partnership interests results in the inconsistency between the total book value of partnership property and partners' basis in the partnership interests. Due to this inconsistency, double taxation or double deduction occurs by taxing to withdrawing partner at distribution and to remaining partners at the disposal of partnership assets to a third party. For a remedy, the book value of partnership property should be increased right after the distribution.