출자전환시 채권자에 대한 대손금과 대손세액공제의 문제점과 개선방안

With regard to acknowledging irrevocable debt expenses in taxation on creditors, debt-equity swaps of investment in-kind has the nature of profit and loss transaction, it is appropriate to assume that creditor suffers a loss to the extent of the difference between the bond price and market value of new stock, in proportion to the debtors’ gain on the waiver of debt, which are the difference between the bond price and the market price of new stock. Thus in the progress of the debt-equity swaps by contribution in kind, for creditors, it is reasonable to assume that the difference between the bond value and the market value of new stocks are correspond to the irrecoverable debt expenses in the light of unified interpretation of tax law and the principle of actual taxation. On the other hand, since bonds are equally exchanged with new shares following the intention of the parties in the case of the debt-equity swaps of offsetting method through payment of stocks, and the entire amount of debt seems to be converted into payment of stocks as it is basically a capital transaction, it is reasonable to assume that it would not cause any profits for debtor as creditor doesn’t suffer any loss. However, in order to promote corporate restructuring, it is necessary to provide creditors with benefits of accepting deductible expenses in the case of debt-equity swaps of offsetting method. In accordance with the article 44 (4) of the current Restriction of Special Taxation Act, only financial creditors are provided with the benefits of inclusion in deductible expenses. However, to support corporate restructuring and promote equity of taxation, it is necessary to extend the scope of the provisions to provide tax benefit to general creditors in order to receive benefits of inclusion in deductible expenses. In relation to the deduction to bad debt tax amount to creditors under the Value-Added Tax Act, even if new stocks are allocated to creditors through the debt-equity swaps by contribution in kind, it is severe on creditors who have not fully recovered their trade receivables due to debt-equity swaps in the rehabilitation or workout process to fully burden with VAT. Accordingly, it is necessary to accept the difference between the bond value and the market value of stocks through debt-equity swaps as the reason for the irrecoverable debt expenses. In case of choosing debt-equity swaps of offsetting method through payment of stocks, there is a problem that it is difficult to acknowledge the amount of difference between the price of convertible bond and the market price of new stocks as a subject of the deduction to bad debt tax amount. Since it is necessary to proceed with corporate restructuring smoothly by making full use of debt-equity swaps of offsetting method through payment of stocks, and in fact, there is still a problem that the creditor suffers economic loss and the VAT burden, it needs to legislate to apply the deduction to bad debt tax amount to the difference between the bond price and the market value of new stock for creditors.