개정상법과 세무문제―주식 및 배당제도를 중심으로―

The provisions related to Non Par-value Stock, Treasury Stock, Dividend-in- kind, and Reserve in the revised Commercial Law which will be enforced as of April 15, 2012, raise several legislative and interpretative issues in taxation as follows. Taxation issues relevant to Non Par-value Stock include：First, the tax base of registration and license tax at the time of issuing non par-value stock varies according to the capital amount decided by the Board of Directors. Second, in case where dividends are distributed as non par-value stocks, the 『issue price』 of stocks should be construed as “the amount calculated by dividing income available for dividends subject to capitalization by the number of stocks issued as stock dividends.” Third, Article 14 (4) of the Enforcement Decree of the current Corporate Tax Act and Article 27 (6) of the Enforcement Decree of the Income Tax Act related to the calculation of fictitious dividend in case where the company issuing non par-value stocks issues new shares when capitalizing the reserves, should be revised. Taxation issues relevant to Treasury Stock include：First, the Supreme Court precedents have distinguished capital transaction (acquisition of treasury stock for the purpose of retirement) and profit and loss transaction (acquisition of treasury stock for other purpose), and therefore, there exists uncertainty in the classification of objectives in acquiring treasury stocks at the time of acquisition when the revised Commercial Law is applied. Second, under the revised Commercial Law, a company may decide, at its discretion, the timing of selling treasury stocks, and the current law stipulates that the gain on sales of treasury stocks is treated as taxable income. Therefore, the problem may begin in earnest that companies engage in the manipulation of their profit and loss. Third, regarding the retirement of treasury stock, the prevailing argument is that the same taxation rule should be applied on it as on the dividends distributed to shareholders. Finally, the complicated taxation issues which are related to treasury stock should be settled by considering treasury stock transactions collectively as capital transaction. Taxation issue relevant to the dividend system is that shareholders receiving dividends-in-kind should appraise the property dividends based on the market price, and pay corporate tax or income tax accordingly. The company should recognize the gain or loss on disposal at the time of distributing the dividends- in-kind. At this point, the gain or loss on disposal should be seen as the taxable income separately incurred in the business year in which the dividend date is included. Lastly, in case where a company distributes treasury stocks as dividends-in-kind, it is thought that the company should recognize the gain or loss on disposal of treasury stocks on the date when the stock dividends are distributed. The taxation issue relevant to reserve is that utilization of a company’s reduced capital reserve as resources for dividends or capitalization of it correspond to refund or account transfer of the paid-in capital for shareholders. Thus, theoretically, they are not subject to taxation. Regarding this matter, part of the provisions in the Corporate Tax Act and the Income Tax Act has been revised, but more modification seems to be needed in the future.