자기주식 거래에 관한 상법 개정과 과세문제

This paper introduces the recent commercial law amendment of Japan concerning treasury stock trades in detail while the tax issues from the nature of treasury stock trades are examined by acquisition and disposal stages in case of the United States, Japan and Korea. As a result of such examination, the following two proposals have been made. First, the introduction of deemed dividend income tax was advocated as de lege ferenda in order to prevent the problem of evading dividend income tax at the time of acquisition. In case of our country, although the taxation of dividend income to shareholders is allowed indirectly in relation to treasury stock trades, the dividend income tax is imposed in case of being disposed and not at the time of acquisition. It would be difficult to prevent the problem of evading dividend income tax at the time of acquisition through such established system. The introduction of such system is necessary also from the fact that a possibility of such tax evasion is even higher in our present circumstances where the restrictions toward acquisition of treasury stock is gradually being eased. Second, in case of being disposed after the acquisition, taxes should be imposed considering it as a profit and loss transaction regardless of whether it was acquired by merger around the time of merge or whether it went through the mergee. Therefore, the position of court’s decision that “the disposal of stocks issued by merger (treasury stock) that were previous holding stocks of mergee due to the merger after the transferred acquisition is a transaction related to fluctuation of capital and considered as capital transaction because it has the nature of refund or payment of capital” should be changed.