조세특례제한법상 투자조합 과세제도에 대한 검토―직접투자와 간접투자 간의 과세형평을 중심으로―

In Korea, the Investment Funds Taxation under the Special Tax Treatment Control Law consists largely of two propositions：conduit theory and taxation equity. The principle of taxation is to ignore the reality of the union and to the union members, and it is pursuing tax equity for direct investment or indirect investment in venture companies. However, there are some inconsistencies in consistency and tax neutrality in income attribution or non-tax exception, so it is necessary to strengthen equity and to resolve ambiguity through the following improvements on current taxation. First, if the Investment Fundsis regarded as a conduit, it should be regarded as the period when income for the exemption applies to the union member, but if the union member pays the source tax amount for the income such as interest income, It seems that the timing of attribution of the income is unclear because it is difficult to distribute the profit immediately due to the structure of profit and loss of the union. In order to prevent confusion in the interpretation, it is necessary to clarify the provision that it is not regarded as belonging to any person at the time when the income to be covered by special income applies to the Investment Funds. Second, in terms of tax neutrality, the Venture Capital Investment Co. Ltd. and the Venture Capital PEF should apply the non-taxation exemption of stock transfer rights on the Venture Capital companies etc. The Venture Capital Investment Co. Ltd. are the same as Venture Capital company and the Venture Capital PEF are the same as Investment Funds in terms of purpose or economic substance, because if they discriminate taxation according to the legal form, they violate tax neutrality. Third, in the case of disposition of the members, there is a conflict between the theories of capital gains tax and the tax office. Therefore, it should be revised consistently to eliminate uncertainty. Under the Income Tax Act, Unlisted union shares will not be taxable. In order to be taxed, the union share must be specified in the taxable subject in the Income Tax Act through amendment of the law. It shall be deemed to transfer only the property belonging to the ownership in accordance with the conduit theory. Finally, in order to overcome taxpayers’ dissatisfaction with the practice of conduit theory in relation to cost allocation, it is necessary to withdraw taxation by conduit theory to some extent and to revise the taxation system from an empirical point of view. Cost of performance, and so on, should be reported as a common cost, and it would be appropriate to treat the union as an entity.