기업분할세제의 주요 논점과 적용

For companies looking at new growth engines or reorganization, a spin-off is an attractive corporate restructuring option. Various legal precedents have been accumulated regarding mergers, but cases of spin-off were relatively small in number. Recently, a Supreme Court decision (Supreme Court Decision, 2016Du40986, June 28, 2018, hereafter “the OCI decision”) has become a very important criterion in the spin-off process. Unlike the decision of the lower court, the OCI decision delineated a few legal principles rather than a clear and specific basis for judgment on a number of issues. However, the decision is meaningful because of its faithful interpretation of the legislative intent to encourage corporate restructuring via tax support. The corporate tax system should support the goal of ensuring that the spin-off for corporate restructuring and specialization is carried out without severe tax burden, and regulators need to ensure the legal stability of tax-qualified spin-offs, because a spin-off will likely become a huge tax trap and undermine the entity's foundation if tax-qualified policy is not operated predictably. In this context, after describing the spin-off system and related tax issues, this article addresses the major issues in question in the practice of spin-off.