미국 연방소득세법상 역삼각합병에 관한 과세 특례

In the United States, section 368 of the Internal Revenue Code recognizes the seven types of corporate acquisition structures that qualify as tax-deferred reorganizations, among which the following three type of reorganization are most important: ① Type “A” Reorganization (statutory merger or consolidation); ② Type “B” Reorganization (stock-for-stock acquisition); and ③ Type “C” Reorganization (stock-for-assets acquisition). The forward triangular merger and the reverse triangular merger are generally treated as Type “A” Reorganization. Prior to October 24, 1968, if the target corporation was merged into the acquiring corporation and stock of the acquiring corporation's parent was utilized as consideration, such stock could not receive tax-free benefit since section 368(b) did not provide for the treatment of the parent as a “party to a reorganization” in type “A” mergers. Effective October 24, 1968, Congress added section 368(a)(2)(D) to the Code. This addition to the statutory definition of a reorganization provides that a forward triangular merger will qualify as a type “A” merger if certain requirements are satisfied. Simultaneously, section 368(b) was amended to make the parent corporation a “party to a reorganization.” In 1971 Congress again amended section 368 by adding section 368(a)(2)(E), which amendment provides that a reverse triangular merger will qualify as a type “A” merger if certain requirements are satisfied. The last sentence in § 368(b) makes the parent corporation a “party to reorganization.”In 2015, Korean Commercial Code also adopted the reverse triangular merger system. In Korea, however, the reverse triangular merger is not granted tax-deferred reorganization treatment. For the purpose of more smooth implementation of the reverse triangular merger, it is urgent to allow the tax referral benefit to the reverse triangular reorganizations by amending the Korean Corporate Income Tax Laws.