개정 기업인수·합병 세제에 관한 문제

Korean taxation of Mergers and Acquisitions was reformed to support corporate restructuring effectively in 2010. However, the wide system of tax-free reorganization has been attended by several problems. For example,it has some provisions which are against tax neutrality and the principle of equity of taxation. It is also weak for tax avoidance through various reorganization transactions. Therefore, this study demonstrates the improvements of the taxation of M&A as below based on the principle of efficiency and equity to support corporate reorganizations efficiently and regulate tax avoidance strictly. First, there is a possibility of tax avoidance by corporate inversions. Thus,when the stockholder of target corporations is a foreign company located in a tax haven which adopts the residence principle for income accruing from transfer of securities based on tax treaty, it needs to be taxed without the benefit of the tax deferral despite qualified mergers. Also, the loss of the right of the taxation can be occurred in the triangular merger case that the stockholders of target corporations are non-residents or foreign companies and the parent companies of acquiring corporations are foreign companies. Therefore, it is asked that the benefit of the tax deferral should not be adopted for the stockholders in that case. Second, there is the problem of double taxation in appropriating asset adjustment accounts for the all-inclusive transfer of assets and the all-inclusive exchange and transfer of stocks, because the provision of asset adjustment accounts has been applied correspondingly from corporate tax act. It is contrary to the principle of equity of taxation. Therefore, in the case of the all-inclusive transfer of asset, the amount of asset adjustment account needs to be appropriated except for the amount of realized transfer marginal profits. In the case of the all-inclusive exchange and transfer of stocks, the reformed system of spin-off and investment in kind on corporate tax act needs to be applied in order for avoiding double taxation. Third, the continuity of economic substance has not been maintained in most reorganizations through backdoor listings. It leads to abuse of tax-free benefits, which also does not conform with the principle of substantial taxation. Thus, it is needed to apply the COBE requirements for acquiring corporations' businesses and reinforce the COI requirements for majority stockholders of target corporations. Fourth, the total period, when corporations are monitored whether they are qualified for tax-free requirements, is flexible. The reason is that the period from the registration to the beginning of the post control is variable based on the registration date. Because it cause the problem of the principle of equity, it is asked that the post control should be finished at the date after 3 years from the registration date to fix the total period for tax-free requirements. Fifth, the current taxation of deemed dividends caused from the transfer of marginal profits accruing from mergers into capital has some problems. it is not regulated in the taxation of the all-inclusive transfer of assets. Therefore,it is needed to supplement the taxation of deemed dividends caused from the transfer of marginal profits accruing from the all-inclusive transfer of assets into capital. It is thought that abovementioned improvements will help the taxation to secure reasonability and neutrality and to revitalize corporate reorganization.