出資轉換으로 취득한 株式의 취득가액을 시가 이하로 계상한 경우 法人稅法상 益金에 해당하는지 여부

A debt-for-equity swap is a concept designed to revive the companies in financial difficulties through converting their overwhelming debt into equity stocks. However, there have been constant and various issues presented around it with no theoretically clear standard on interpreting the circumstances set. Due to lacking criteria, not only are the tax offices unable to come up with a reasonable way to proceed such affairs, but also the court is put in the situation where they themselves find it hard to make just decisions. The purpose of this study is to contribute to the realization of rule-of-law-based administration and to suggest a fair and reasonable standard of interpretation in certain cases, for example, whether the stocks that were acquired from a debt-for-equity swap comes within the category of gross income in reference to current Corporate Tax Act. Corporate Tax Act puts companies subject to taxation based on their income in each business year, just as the income tax is posed to taxpayers on their year’s income. Accordingly, in the profit and loss method’s perspective, the current Corporate Tax Act defines its tax amount to be as much as the taxpayer’s expected/probable total gross income in the very business year with the same year’s expected/probable gross loss deducted. Under current Corporate Tax Act, what gross income means is the income generated by the transactions that increase the concerning companies’ net income. Corporate tax is a derivative form of income tax and is posed to the taxpayer based on their net income according to the ‘principle of taxation on net income’, which is the reason the calculation, gross loss deducted from the gross income, is needed. Article 15 of the Corporate Tax Act provides detailed explanation about the range of gross income and Article 11 of Enforcement Decree of the Corporate Tax Act stipulates the official meaning of profits. Neither Corporate Tax Act nor the Enforcement Decree defines one’s acquisition cost of the undervalued stocks from the debt-to-equity swap to be gross income, and thus such interpretation is also impossible.