주식 시가가 채권가액 이하인 액면 출자전환의 과세문제와 개선방안

This study reviews the taxation issues of debt-equity swap, which is made at face value when stock price is below bond price. In the case of a debt-equity swap, which is made at face value when stock price is below bond price, reasonable reasons should be confirmed by basic rules of the Corporate Income Tax Act if a creditor wishes to recognize the loss. [Bad-debt expense for the amount of bond waiver by agreement]; however, in this case, the criteria for judgment of legitimate reason is not clear and the range is very narrow in view of the authoritative interpretation. Therefore, creditors may not be able to collect the bonds and thus may not be allowed to recognize the loss, even though the loss is bad debt expense. In addition, the current decree, which is interpreted as that there is no waiver of the obligation to the debtor in the case of debt-equity swaps, is not fair in terms of fairness of taxation because the size of the waiver of the obligation is determined by the face value, regardless of the extent to which the debt is exempted. To handle these issues, this study reviews the tax issues of creditors and debtors caused by debt-equity swap. It also suggests the following improvements by referring to some cases of the U.S. and Japan concerning taxation treatments for the debt-equity swap which seems theoretically valid or practically applicable. On the debtor’s side, in case of debt-equity swap in general circumstances, not under the rehabilitation plan, the difference between the bond price and the stock price shall be taxed as a waiver of the obligation on the principle of fairness of taxation, regardless of the face value of stock issued. On the creditor’s side, it is necessary to determine whether to recognize the loss on independent criteria, regardless of whether the waiver of the obligation is incurred. Specifically, it is necessary to clarify and expand the scope of creditors' recognition of losses by referring to the case of Japan's rational reconstruction plan. This study proposes a direction for more rational revision of Korean tax laws by devising such improvement measures.