자기주식 취득에 대한 부당행위계산 부인의 적용 ―대법원 2020.8.20. 선고 2017두44084 판결을 중심으로―

In the Supreme Court Decision 2017Du44084 August 20, 2020, a company (the stock issuer) acquired treasury stock from its foreign corporate shareholder several times in accordance with an agreement which retroactively extended the exercise period of the put back option granted pursuant to a share purchase agreement. The Supreme Court held that such acquisition was equivalent to a purchase of a non-performing asset lacking economic reasonableness, to which the “unfair transaction adjustment (denial of unfair acts and calculations)” rule applies in international transactions. In light of the relevant facts―the plaintiff did not have an obligation to purchase the stock, it was difficult to view that the plaintiff would gain a profit by holding the stock or that the plaintiff would have incurred a loss if it did not purchase the stock, the purchase/transfer price of the treasury stock, the plaintiff could not list the stock on the public market, etc.―the Supreme Court viewed that, at the time of the transaction, it was unlikely that the plaintiff would derive a profit in the future by managing the relevant treasury stock. The Supreme Court further viewed that, for such non-profit asset purchase, the amount of income recalculated based on the unfair transaction adjustment rule should be the amount equivalent to deemed interest for the period from the treasury stock acquisition date to the date on which the purchase price is collected through a disposal of the treasury stock, even if the special relationship ceases to exist during the acquisition of the treasury stock. However, based on the previous Supreme Court decisions concerning the applicability of the provisions relating to the ‘purchase of a non-performing asset’, in order for a purchase of an asset to be considered as a purchase of a non-performing asset, the taxpayer must have purchased the relevant asset even though the taxpayer did not expect the asset to generate much (if any) profit, solely for the purpose of lending funds to the counterparty, and not for the taxpayer’s need or for the purpose of generating profits. It is difficult to view that this applies to the above case. Further, in general, a treasury stock acquisition cannot be viewed as a purchase of a non-performing asset unless it is specifically intended for lending/borrowing of funds because one of the characteristics of a treasury stock acquisition is that the transaction itself destroys the related party relationship；therefore, only the adequacy of the acquisition price can be challenged and the difference with market price can be denied through application of the unfair transaction adjustment rule. Nevertheless, in the above case, the tax authorities and courts seem to have developed a rather unreasonable taxation logic because there was no way to tax the treasury stock acquisition at issue other than by applying the provisions for the ‘purchase of a non-performing asset’. In the above case, even though the plaintiff purchased treasury stock from a foreign corporate shareholder at a price higher than the market price for purposes of the Corporate Income Tax Act (“CITA”) (an amount equivalent to interest was added to the acquisition price), neither the tax adjustment provisions (based on the arm’s length price) in the Law for the Coordination of International Tax Affairs (“LCITA”) nor the provisions denying high-priced purchase in the CITA could be applied. However, the fundamental reason for such a tax loophole arose because the scope of ‘related persons’ who are subject to the denial of unfair transaction adjustment rule under the CITA and the scope of ‘foreign related persons’ who are subject to the transfer pricing rules under the LCITA are different. Therefore, rather than viewing treasury stock acquisitions as a non-performing asset purchase as in the above case, the fundamental solution is to unify the scope of ‘related persons’ in the two laws. On the other hand, even if we take the view that the rules for non-performing asset purchase should apply to the above case, the calculation period for deemed interest should be limited to the period during which a related party relationship existed. Also, (although this is not an issue that was disputed or discussed in the above case) to the extent a treasury stock acquisition transaction is an international transaction and a loss is recognized upon disposal, the difference between the actual acquisition price and the market price at the time of acquisition (i.e., the amount of acquisition price exceeding the market price at the time of acquisition) should be recognized as a deductible expense. However, more fundamentally, a treasury stock acquisition is in substance a return of capital to the shareholder. Accordingly, from a legislative perspective, it would be reasonable to treat and tax treasury stock acquisitions as a capital transaction irrespective of whether the stock is subsequently retired or not, similar to Japan or the United States. In this regard, setting aside whether shareholders (i.e., related party of one another) can distribute profits among themselves in a treasury stock acquisition, from the perspective of the company and its shareholders, it is somewhat inappropriate to assess the appropriateness of the purchase price.