손실공제 남용에 대한 규제의 필요성 — 미국 입법으로부터의 시사점 —

The purpose of this paper is to recognize that tax avoidance through loss deductions is likely to occur in the current tax law system and to propose that legislation be in place to prevent such abuse. This paper researched and summarized how the current tax laws deal with loss deductions among each income and have found how loss deductions can be abused, identifying three aspects of tax avoidance through loss deductions: (i) In the case of an individual taxpayer, losses incurred from one business are deductible from another business income or other kinds of income; (ii) Any loss allocated by a pass-through entity is deductible from an individual taxpayer’s business income or other kinds of income, or for a corporation it is treated as deductible expenses; (iii) Total income of a corporation decreases because it can integrate with all incomes and losses without restrictions on the source or type of income. After reviewing the tax law of the United States, which has a relatively well-organized legislative system to prevent tax avoidance, the legislation direction or legislative guidance to solve the above problems is presented. More specifically, it is as follows: In the case of the income tax law, in principle, business income should be classified and calculated by income type. The meaning of active business activities should be defined, and losses on the part of not materially participating in business activities should be restricted to be combined with other business income and other kinds of income. The corporate tax law should categorize the income of a corporation by sources such as general business income, rental income, and investment income, and should not allow loss deduction from other sector income. In the case of a closely held corporation, the loss from not materially participating in business should be restricted to deduct from other income.