이월결손금 공제제도에 대한 연구 ―기업인수,합병에 대한 규율을 중심으로―

Net operating loss is one of the important tax attributes of a corporation. Consistent with the philosophy of the non-recognition provisions of tax law on corporate mergers and acquisitions, basically net operating loss carryovers should remain undisturbed after such tax-free reorganizations. On the other hand, the sale of the net operating loss is no more than difficult than the sale of the stocks of the corporation, provided that the corporation's net operating losses are not reduced or eliminated by the transfer of the stock. This sim- plified discussion ignores the problems created by the trafficking in corpora- tions having substantial net operating losses. To prevent abusive transactions designed to reap benefits of tax deduction by the use of net operating loss, the net operating loss carryovers should be limited to even out the amount of deduction before and after the corporate reorganization. Also, stricker regulations on net operating loss carryover could be considered for particular types of transactions more prone to such abuse. Whether a loss corporation becomes surviving corporation or not, the regula- tion on the use of net operating loss carryover should be implemented in the same manner. Similarly, for the corporate reorganizations such as share exchanges during which legal identities of entities involved do not change, the use of net operating loss should be limited if there is a substantial change in its ownership. However, as there exists a strong necessity to assist insolvent corporations to escape from financial difficulty and to bring about a new start, carryover of net operating loss should be modified or relaxed to accommodate the particular circumstances of insolvent corporations. The current tax code of Korea has many debatable issues on regulations on net operating loss carryovers. This article deals with these issues from the perspective of tax neutrality and introduces useful examples of legislations and legal principles of other countries such as the United States, Germany and Japan.