배당, 분배, 배분의 개념체계와 과세제도에 관한 연구 ― 사업조직의 성격을 중심으로 ―

Tax law comprises of the fundamental concepts and various taxation systems derive from those fundamentals. With the flaws in the fundamental concepts, various systems from them are likely to have same flaws, or sometimes exaggerated ones. One of the confusions that Korean tax law has is related to the confused demarcation of the dividend, the distribution, and the allocation. The current Korean tax law treats almost all distribution as a dividend. This treatment shows how much the Korean taxation system is tilted to the entity theory. This may have a harmful effect on the neutrality of the income taxation and the development of relevant industries. One example is the mistreatment of the income on the passive partner in the partnership taxation, which has caused the hurdle to the development of the private equity fund industry. However, the more serious problem is that, hence the classification of the income is one of the foundation of the system, the confusion on the foundation may trigger deviant disorders at any time. This thesis deals with disarrangements related to the concepts and the demarcation of the dividend and the allocation, and tries to find their reform measures. The dividend, the distribution, and the allocation have different meanings in the tax terms. The dividend is the distribution of the income or the reserve from the independent entity. The distribution has the wider scope in its application than that of the dividend in that the distribution is the payment of the assets to its constituents from the organization. On the contrary, the allocation is the return of the income to the beneficiaries for the tax purpose whether or not the actual amount is distributed. If the particular organization is the independent entity from its constituent members, its income distribution to its members is to be treated as a dividend. Hence the payor and the payee are the independent entities, the payment from one to the other is the taxable event and the transaction between the independent characters. On the contrary if the particular organization is only a aggregate of constituent members, its income distribution to its members is just a transfer of assets to its members. Its distribution shall not be a taxable event and has a trivial meaning as far as the imposition of the tax is concerned. In that case, the allocation is more essential process in the tax perspective, because the income of the transparent entity is to be divided among members for the tax purpose without the reference to the actual payment. Corporation, the typical example of the independent entity, and un- corporation, the typical example of the transparent entity, apply the different approaches for the incentive of its operation. In the typical corporation, the board committee, monitoring process, and disclosure of the financial report are the crucial measures for its governance. In the uncorporation, the organization is operated and stimulated by the different incentive system, where interests of the uncorporation and its members are synchronized. The ownership and the management are not separated and their interests must be in accords. In such a case, the entity and its members are not separate, and the payment from one to the others is just the change of the account. Unlike the Republic of Korea where the corporate taxation system has prevailed over the fiscally transparent taxation system, OECD and many developed countries have made different applications on the income from the corporation and on the income from the transparent entity such as an uncorporation. The corporate tax system and the partnership tax system coexisted as parallel taxation system. To the independent entity, the corporation tax system treating it as a separate entity is the appropriate system in accordance with its economic substance. To the transparent entity such as an uncorporation, the partnership taxation treating it as an aggregate is the proper system. Although some countries allow the transparent entity to choose between the corporate tax system and the partnership tax system, it is for the benefit of the tax payers and the prevention of the unexpected loss caused by their ignorance and the administrative difficulty to discern the legal characteristics of its own organization. In this regard, this thesis introduced seven criteria for judging the organization as an entity organization or a transparent entity. “The indepen- dence as a body of the rights and obligations”, “the limited liabilities”, “the asset partitioning”, “the transferability of ownership interest”, “the continuity of life”, “the centralized management”, and “the applicability of the different profit and loss ratio from its investment” are the seven criteria for the entity organization. Using these criteria, various organization types in the Korean civil law can be categorized as an entity organization or as a transparent entity. In Korean civil law system, a joint-stock company, a limited company, a special purpose company, and a corporate type collective investment vehicle are categorized as an entity organization. A limited liability company, a general partnership, a limited partnership, an association, a trust and a trust type or an association type collective investment vehicle are categorized as an transparent entity. In principle, the dividend concept should be used in the entity organization, and the allocation concept should be used in the transparent entity. However, in applying such concepts, due respect shall be on the tradability of its ownership and its economic substance. In the situation where the ownership are traded frequently, taxation system for the transparent entity are hardly workable. In that case, simple classification of the income is necessary. In addition, there are some cases that the economic substance of the organization is different from its form, where it is crucial to apply the transparent taxation system to the entity organization. This thesis proposed the classifications to the income for each type of the organization using above criteria. Under these proposals, income classification of the passive income partners in the Korean partnership taxation system and the common working place taxation system should be reformed according to the allocation principle. In addition, income classification of the collective investment vehicle, where all income therefrom is treated as a dividend, should be rearranged in accordance with the substance-over-form principle. In case of the special purpose company, it should be treated as a transparent entity despite its joint-stock company form. The allocation principle should be applied to a limited partnership and a limited liability company.