독일의 기업분할세제에 관한 연구 - 영업분할(Betriebsaufspaltung)에 대한 과세를 중심으로 -

This paper analyzes German tax system of corporate restructuring and corporate demerger by case law, focusing on Company Split-Up (Betriebsaufspaltung). The Company Split-Up used to refer to the untypical division - in a particular way of letting essential assets - of a company formerly operated as a single business into two separateand independent legal entities: a possession company (formerly original company) and operating company. This Company Split-Up is often used to avoid the unlimited liability and the taxable realization of unrealized gain. According to decisions of the German Federal Tax Court (BFH), the Company Split-Up means the lease of entire business or letting a part of it without any change in its interest, but from the functional standpoint, an essential asset to the operating company is treated as his own business activity. Therefore, the profits derived from the lease or letting are sufficient to be deemed as not an income from the lease of property, but a business income. It is assumed that the lease of real estate is almost always qualified as essential assets. The realization of unrealized gain does not occur until the end of Company Split-Up. This would raise serious tax issues and it may bring a situation that a possession company must sell its essential assets or even the possession company itself. To avoid this problem, the German Federal Tax Court utilizes the system of the German tax credit on the ground of equity, namely the divergent assessment of taxes on the equitable ground, according to Section 163 and 227 of the Fiscal Code of Germany. However, we could also find its systematic errors that arose from exceeding the constitutional limit of legal interpretation and judicial lawmaking.