파생상품 이익의 소득구분과 수입시기에 관한 연구

The derivative transaction is mere spot trading which has long-term performance period. If the gains from spot trading is taxed as capital gains tax, the gains from derivative transaction should be tax as same manner. Under current Income Tax Act, capital gains tax is levied for the gain from the sales of shares. If the shares are purchased and sold at the performance period for the physical settlement of forward contract, under the current taxation, capital gains are assessed and there is balance between spot trading and derivative transaction from the tax perspective. However, all of derivative transactions as well as forward contracts are settled for the net of contracts at the performance period or closed with taking opposite position. Even though the economic effect from the net settlement or closing with opposite position is same as that from physical settlement, if these gains are not taxed with the assumption that these transactions method does not accompany transfer of share ownership, there is no fairness. The revised Income Tax Act levies capital gains tax on the gain from the transaction of KOSPI200 futures & options. However, the scope of taxation in the spot transactions is more wide than that of KOSPI200 futures & options. Therefore, fairness in taxation should be pursued by extending the scope of taxation in derivative transaction. The gains from derivatives comes from spot transaction in essential. So, it is right to treat the character of this gain as capital gain. And the gain from derivatives should be interpreted that it realized at the time of performance of derivative contract. The classification whether it is long-term or short-term should be decided based on the period from the contract date to performance date. It is principal to treat gains from derivatives as capital gains and realized at the time of performance. However, to prevent tax avoid, legislation should be also considered to recharacterize of gain as interest income and it is realized at the time of contract or at the fiscal year end. The transaction may have the form of share transfer with purchasing shares and selling forward of that shares at the same time. However, in substance, if the effect from this transaction is same as lending money and collecting principal and interest after the certain period of time, it is reasonable to treat the gain from this transaction as interest income rather than capital gain. The gain from derivatives should be treated as realized at the time of performance. However, in case of derivatives traded in the Exchange, evaluation gain of the transactions is under control of investor by daily settlement system. Therefore, in this case, it is reasonable to treat that the gain is realized daily basis. To avoid complexity of taxation, it may be treated that it was realized at the time of performance date. However, if the performance date is long-term, to prevent tax avoidance by deferring taxation, it is more resonable to treat that the transaction is realized at the end of fiscal year-end. In case of “short-against-the-box” which deferring selling time by holding marketable shares and taking short-position of forward contract without selling those shares, it is required to prevent tax avoidance from deferring taxation by the legislation that the derivatives is realized at the time of contract rather than performance date.