합병시 영업권 과세요건 해석론에 관한 비판적 고찰 ―최근 대법원 판례들을 소재로―

Recenly the Supreme Court of Korea has issued many Supreme Court decisions on the taxation of goodwill in merger. The purpose of this article is to critically review the theory of requirements for taxation of goodwill in merger through these Supreme Court cases. The summary asserted in the paper is as follows. First, there have been several Supreme Court decisions that held the meaning of business value, but the ambiguity of this requirement still remains. Second, the Supreme Court decisions show that it is difficult to clarify legal interpretation in business value. Third, there is no taxation of goodwill in merger if merger is qualified as a tax-free reorganization. Fourth, it is unclear whether payment for goodwill should be interpreted as the meaning that it is enough to understand that such issue simply means something paid as consideration. Fifth, the dispute over how to assess goodwill should also be approached flexibly from the perspective of a functional concept regarding the timing issue of taxpayers' taxable income. Therefore, the residual method ensures normative justification as a method of assessing goodwill in merger, provided that, if there is an identifiable and marketable asset, it is not within the scope of goodwill. Sixth, the reliability of valuation methods depends on how fairly two parties set the price of goodwill in merger. Categorization of cases plays an pivotal role in this issue.