기업구조조정 과정에서의 출자전환, 무상감자와 가업승계 조세특례의 제문제

In the face of an increasing number of small and medium enterprises or middle-standing enterprises proceeding corporate rehabilitation or workout, it has become an issue that tax authorities and courts interpret the debt-for-equity in the progress of rehabilitation or workout, inheritance deductions for family business regarding capital reduction without consideration, exception to gift tax on family business succession, against the intention of family business succession. However, considering the legislative purpose of related laws with regard to tax equity, family business succession, and corporate restructuring, it is necessary to pursue theological interpretation to exclude additional collection of inheritance tax or gift tax, in the case that the family business successor retains its status as the largest shareholder even if its shares are slightly reduced as a result of debt-for equity swaps or capital reduction without consideration. In other words, it is reasonable to assume that debt-for-equity swaps are also included in exceptions to additional collection of inheritance tax and gift tax, since paid-in capital increase for expansion of capital expenditure․business scale, and organizational change such as merger or division are stated as exceptions to additional collection of inheritance tax and gift tax, in accordance with the current laws. And debt-for-equity swaps shall be construed as a method of “paid-in capital increase for expansion of capital expenditure․business scale”, as debt-for-equity swaps result in the increase of capital by reducing corporation debt and the increased capital can be used for expansion of capital expenditure․business scale. In addition, since financial changes such as debt-for-equity swaps can be construed as a part of the organizational changes in common with merger or division, interpreting debt-for-equity swaps as exception to additional collection, seems to correspond with the legislative purpose of both the Inheritance Tax and Gift Tax Act, and the Restriction of Special Taxation Act, which are introduced to encourage family business succession. In addition, 10 years of post management period in the case of family business inheritance, and 7 years of post management period in the case of pre-donation for family business succession are excessively long period, considering that corporate rehabilitation or workout of small and medium enterprises occurs frequently with the changing economic situation. Nevertheless, being judged to violate the post-management, even if shares are changed due to debt-for-equity swaps and capital reduction without consideration, which is resulted from corporate rehabilitation and workout, far from the will of the successor, is the judgment to shift responsibility of external circumstances on to the successor of family business. Therefore, aforementioned case shall be considered to be the exemption to additional collection due to violation of post-management of inheritance. Recently, by amending the Enforcement Decree of the Inheritance Tax and Gift Tax Act as well as the Enforcement Decree of the Restriction of Special Taxation Act, reduction of shares, resulted from debt-for-equity swaps and capital reduction without consideration, is stipulated as the exception to additional collection due to violation of post management of inheritance, rather than inheritance deductions for family business and special treatment in gift tax. However, for uniformity and equity of taxation, it shall be further amended to consistently give special treatment in taxation rather than to make a difference among rehabilitation, corporation restructuring, heir and donor. Since there is no reasonable reason to discriminate between debt-for-equity swaps and capital reduction without consideration, as special treatment in gift tax, both debt-for-equity swaps of Corporate Restructuring Promotion Act and Debtor Rehabilitation And Bankruptcy Act shall be stipulated as exception to post management with regard to inheritance deductions for family business. And also, since shares deduction resulted from the capital reduction without consideration shall not be treated differently from the inheritance deductions for family business, it is necessary to amend the Enforcement Decree of the Inheritance Tax and Gift Tax Act as well as the Enforcement Decree of the Restriction of Special Taxation Act to exclude shares reduction due to the capital reduction without consideration even after receiving special treatment in gift tax to pre-donation, from the additional collection. In relation to the payment in annual installments, it needs to relieve the economical burden by maintaining the benefits applied to the period of payment in annual installments, even if a family business successor has not become a largest shareholder as its shares are decreased through debt-for-equity swaps or capital reduction without consideration. Further, family business succession shall be promoted by stipulating the benefits of the payment in annual installments to donee, which was not specified in the existing laws.