현행 배당세제하에서의 회사재산 분배와 주주의 회사지배관계를 이용한 조세회피 ―미국 내국세입법과의 비교를 중심으로―

Corporation accumulates property after its establishment, which is supposed to be distributed to shareholders in the form of dividend or through the process of stock cancellation, paid-in capital reduction, or liquidation, etc. The distri- bution of property by corporation involves tax implication, in relation to which both the Corporate Tax Act and the Individual Income Tax Act provide relevant provisions regarding dividend and constructive dividend. If a corporation distri- buting property is controlled by one shareholder or several shareholders with the same interest, the controlling shareholder(s) could design the form, timing and amount of distribution to his(their) favor. Beyond that, the problem is that tax avoidance by such shareholder(s) through control of corporation could occur in distribution of property by corporation. Under the current tax law, a variety of tax avoidance by controlling share- holder(s) could occur in the distribution of property by corporation as in other transactions. Such tax avoidance could be classified into the following types：(i) where the amount of income is reduced, (ii) where the nature of income is changed, (iii) where the time of recognition of income is deferred, and (iv) where distribution of property is used as a chance for an arbitrary evaluation for asset or liability of corporation. In some specific examples of tax avoidance either the principal of ‘substance over form’ or the theory of ‘sham transaction’ could apply, however in other examples either such principal or theory could not properly apply because of the principal of ‘no taxation without law’. The latter case requires legislative solution.