미국 연방소득세법 제355조상의 비과세Spin-Off와 지분 계속성 요건

A spin-off is one type of tax-free corporate division permitted under section 355 of the U.S. Internal Revenue Code (“the Code”). A spin-off involves the distribution of the controlled corporation’s stock by a parent corporation (the distributing corporation) to its shareholders. The subsidiary’s shares are distributed on a pro-rata basis to existing shareholders of the parent company, without a requirement that the shareholders surrender any stock of the parent in return. Of the various means of divesting businesses, the spin-off has become extremely popular in the U.S. In order for a spin-off to qualify as a tax-free reorganization under section 355, the transaction generally must satisfy all the statutory requirements and the judicial requirements one of which is the Continuity Of Interest (“COI”) requirement. The COI requirement is the key determinant of a spin-off's qualification as a tax-free corporate division. The COI doctrine provides that the distributing corporation’s shareholders must receive a definite, material, and substantial proprietary interest in the controlled corporation in exchange for their distributing corporation’s shares in order for a spin-off to qualify as a tax-free corporate division. In determining whether an controlled corporation delivers this type of interest to the distributing corporation’s shareholders, the COI doctrine considers the aggregate amount of controlled corporation’s stock that the distributing corporation’s shareholders receive in a reorganization. The corporate division system originating in the laws of France, Germany, and England was introduced to Korea when the Korean Commercial Act was amended in 1998 after the foreign exchange crisis in 1997, and the Korean Corporate Income Tax Law amended in 2000 allows the tax-free status to the corporate division if it satisfies several requirements very similar to those of the spin-off under section 355 of the Code one of which is the COI requirements. In this article, the COI requirements of section 355 of the Code and that of Korean Corporate Income Tax Law are compared and analyzed to find any implication for Korean corporate division system.