준비금 감액배당과 자기주식 취득 관련 주주과세의 개선방안 연구

Profits earned through business activities of a corporation attribute the shareholders, but the taxation of shareholder is deferred until the distribution to the shareholders since it is not immediately sent to the shareholders whenever it is generated. The current tax law captures each distribution of corporations property to shareholders as taxation event and tax it on shareholders. Generally, cash or in-kind received by shareholders through the dividend procedure under the Commercial Act is taxed as dividend income. Since corporations can set the outflow limit within the scope of dividendable profits under the Commercial Act, dividendable profits could be generally regarded as a tax token of dividend income. However, the statutory reserves (especially the capital reserve) reduction system was installed and the restriction on the acquisition of treasury stocks within the dividendable profits which are available for the property distribution was reduced through the revision of the Commercial Act in 2011. Accordingly questions arise as to whether dividendable profits can be used as a basis for dividend income taxation or not. Since then, the number of cases in which capital reserves are converted into dividendable profits and then distribute to the shareholder through profit dividend procedures under the Commercial Act, and the cases the acquisition of treasury stocks by stock issuing corporations have increased relatively. Shareholders can enjoy similar economic effects as dividends, while at the same time significantly lower tax burden. The current shareholder taxation regulations do not properly reflect the economic changes brought by the amendment of the Commercial Act, so they deviate from the international trend and are unclear, omission of taxation, and cause unnecessary tax disputes, undermining the predictability and legal stability of taxpayers. Moreover, it cannot adequately respond to tax evasion(abuse) cases using capital transactions. For legislative improvement measures in the short term, it is preferable to tax the portion of distribution from reduced capital reserves in excess of the acquisition price, and to unify the share capital gains tax on the consideration received by shareholders when acquiring treasury stock regardless of the purpose of acquiring treasury stock. Anti-tax avoidance regulation should be introduced to prevent tax avoidance by shareholders who have substantial control over the decision on the type and timing of corporate’s distribution. In the mid-to-long term, comprehensive regulations on capital transactions should be prepared through the introduction of the concept of taxable dividendable profits and it needs to determine the direction Korea will adopt, considering that the approaches differs depending on the company laws and tax laws of countries that have already introduced the concept of tax dividendable profits.