세법상 물적분할 적격요건에 관한 연구

Korean tax rules for corporate reorganization including merger, acquisition, division and other corporate restructuring were completely revised in 2010. Lawmaker has consistently revised tax law provisons several times in recent years because of their incompleteness. In this course, this new tax rules inevitably have made several legal issues. As you may know, the pivotal issues of taxation on corporate reorganization is whether to instantly tax unrealized gains on which the parties concerned have not paid yet. As far as tax issues is concerned, physical corporate division is nothing different from other types of corporate reorganization. In this paper, we tried to analyze legal conditions on qualified physical corporate division. In other words, the object of this paper is to show critically how we should deal with qualified physical corporate division and what we need to consider as to tax issues which is relevant to the same one. Main arguments of this paper can be summarized as follows：Firstly, even if we could admit fully-neutral taxation of corporate reorgani- zation is logically impossible, we also should admit we need to set a criterion interpreting legal conditions for corporate reorganization. We think that comes from legislative purpose, which means corporate reorganization is socially desirable and is to be encouraged. Secondly, interpreting specific legal phrase of “Independent Business Unit” in qualified physical corporate division provision, the word “independent” cannot have a clear meaning. That is why internal neutrality between types of corporate reorganization should be kept as possible. Thirdly, we cannot accept the opinion that universal succession means transfer of “every” assets and debts as a study on the definition. Fourthly, the current tax rules for continuity of proprietary interest between qualified physical corporate division and in-kind contribution are somewhat asymmetric. However, that difference doesn't make any big problem in the viewpoint of tax neutrality.