기업집단 소속 공익법인 과세에 관한 고찰 ―상증세법상 의결권주식 과세를 중심으로―

Voting stocks of a company donated to a public interest corporation tend to leave opportunities to control the company indirectly to the donor while they also serve as an important source of funding for the public interest activities of the public interest corporation. It has been one of the main issues of the Inheritance Tax and Gift Tax Act(‘the ITGTA’) since the year 1990 how much tax benefit has to be given to the holding of voting stocks by a public interest corporation in consideration of its two opposing aspects. With the history of the changes in the regulations, the experiences of foreign countries and the recent survey of the operation of public interest corporations taken into consideration, it would make more sense to adopt an approach to increase the business holding ratio as a means of increasing the public interest expenditure while monitoring the management of the public benefit corporation rather than to adopt an approach to set a strict limit to the business holding ratio under the presumption that the business holding will incur the adverse effect to the management of the public interest corporation. The ITGTA has regulated the business holding ratio of the public interest corporation belonging to a business conglomerate in a more strict way in comparison with that of other corporations since the year 1999. Because public interest corporations belonging to a business conglomerate tend to be positioned in a better financial circumstances, it would make sense to open the door wider for the donation of stocks of companies belonging to the same conglomerate and to encourage the public interest activities. Various studies and researches do not show that public interest corporations belonging to a business conglomerate tend to strengthen the concentration of economic power of the business conglomerate around the country as a whole. The Article 25 Paragraph 2 of the Monopoly Regulation and Fair Trade Act(‘the MRFTA’) allows the voting rights up to 15 percent ― the holdings by its related parties have to be counted and added to its own holding ― of stocks issued by an affiliate company and held by a public interest corporation belonging to the same business conglomerate. Because the MRFTA which governs the control of the concentration of economic power to conglomerates sets the limit up to 15 percent, it is preferable for the ITGTA to accept such an regulation to avoid any inconsistency in the policies in this area. Pursuing private interest through self-dealing and reducing public interest expenditure may ensue in a heftier way if the business holding ratio is increased for public interest corporations belonging to a business conglomerate. These problems may be avoided by the new procedural solution to have public interest corporations to return an yearly file to report the fulfillment of the integrity requirements given in return for the increase of the business holding ratio.