파산절차 중 발생한 양도소득 취급에 대한 실무상 문제

Individual bankruptcy is intended to guarantee satisfaction of claims to all creditors in an equal manner and, at the same time, allow economic and social recovery of individuals who have lost their ability to repay their debt. Although debtors are released from their debt through the bankruptcy and indemnity procedures, there still exist a number of systems and practices that hinder the debtors’ economic recovery. One example is excessive protection of tax claims. The Debtor Rehabilitation and Bankruptcy Act provides that any and all tax claims, even those existing prior to declaration of bankruptcy, are estate claims and non-dischargeable claims. This is criticized as extremely rare legislation from the perspective of comparative law. As an exception, the Income Tax Act prescribes that any income earned from the disposal based on declaration of bankruptcy is not subject to income tax applicable on capital gains. In practice, the above clause applies to the disposal in the form of private sale, etc. performed by the bankruptcy trustee with the court’s permission or to the disposal performed with the request for continuation of the compulsory execution that commenced prior to declaration of bankruptcy. However, for any claims are disposed of through private sale performed by a mortgagee or any other person having the right of separation, it is viewed that application of the above clause should be denied, and debtors are required to pay capital gains tax. This article reviews such practical issues, makes a case that exemption from capital gains tax should apply to claims disposed of through private sale, and proposes potential legislative improvements. It is hoped that more discussion will be made as to those issues to help debtors’ economic and social recovery.