파생결합증권(사채)의 과세에 관한 법률적 문제

The purpose of this study is to review the legal issues on the securitized derivatives taxation. For this purpose, this study overviews the regulation on the securities as per the Commercial Act, the Financial Investment Services and Capital Market Act and the relations between the securities and hedging transactions. The Income Tax Act is reviewed for the current taxation issues based on the overview above. It is found that current taxation on total income from securitized derivatives as dividend is appropriate because it cannot be segregated embedded derivatives from the composition and the income is uncertain to its expiration, provided that the ground of such taxation should be modified to comply with the rule of “no taxation without representation”. In addition, this study considers the practical issues such as (i) the inequality of taxation on the Derivatives Linked Warrants(DLW) compared to the Equity Linked Warrants(ELW), (ii) the disadvantages of taxation on the securities with the payment before its expiration, (iii) the irrationality of the time to determine any income from any securities exempted by delivery, and (iv) the dual taxation or tax avoidance in case of transfer or inheritance of the securities, and resolutions for such issues. In conclusion, this study represents that the current taxation practice should be improved which depends on the regulator’s discretion excessively. Also, it makes market participants unable to figure out the taxation on the new financial instrument even in case of legal characteristic that is cleared by the Financial Investment Services and Capital Market Act.