출자전환손실의 법인세법상 손금 인정에 관한 연구

A creditor corporation is changed from a creditor to a shareholder by receiving the stocks of the debtor corporation and extinguishing the bonds through Debt-Equity Swap(‘DES’). However, In ordinary circumstances, The market price of the stock whose debtor corporation with poor financial is usually less than the bond price. At this time, there arises a problem of reducing taxable income under the corporate tax law by deducting the difference between the bond price and the market price of the stock. In the case of debtor corporation that is a general company that does not meet the tax deferral requirements, when considering that Income from Discharge of Indebtedness(DOI Income) are taxed, and the losses creditor corporation recognized as an expense should be covered as deductible as possible. But, the tendency of the tax authorities to exercise their right to taxation by capturing various types of taxable events for various transactions derived from numerous areas of economic activity is also seen in DES process. With regard to transactions between affiliate corporations, the tax authorities initially apply the rule that ‘the Denial of Improper Transactions and Calculations’(section 52 of the Corporate Income Tax Law). but, the Supreme Court and the Tax Tribunal began to use ‘economic rationality’ as the basis for judgment, the grounds on Denial of deductible expense in DES have been lost. Considering that the inability to collect bonds is the amount of uncollected losses of bonds objectively determined by external circumstances, the inclusion of bonds as a cause for bad debt by a corporation under its own internal circumstances is not a literary interpretation. The entertainment expense regulation is widely used in practice from the standpoint of tax authorities to secure taxation rights due to the inclusiveness of the legal text, but the concept of entertainment expenses should be limited to ‘entertainment expense’ to play and drink for pleasure' under the premise of business relevance. When thinking from this point of view, it is easy to see that the attempt to regulate the loss of creditor corporation in DES as entertainment expenses is not in accordance with the purpose of the entertainment expenses regulation under the tax law. If so, it would be a reasonable criterion to determine the possibility of deductible expense by examining whether the expense of DES the entity met the requirements of section 19 of the Corporate Income Tax Law. As 'expense on disposition of bonds', it corresponds to “amount to be attributable to or attributable to the corporation as other deductible expenses” in section 19, No. 23 of the Enforcement Decree of the Corporate Income Tax Law. DES is based on a business judgment made by creditor corporation among several economic options related to the improvement of the financial structure of debtor corporation. I think it is unfair not to allow creditor corporations to take into account deductible expense by excessively expanding the standard under the tax law. Therefore, the administrative interpretation of deductible expense in DES, which does not conform to the current laws and the Supreme Court precedent, should be deleted(complemented), and the role of the tax law should be controlled to operates to a minimum in this area of ​​economic choice.