자기주식 취득 및 처분에 대한 통일적 평가 및 규율의 필요성―조세법과 회사법의 규제 체계 비교를 중심으로―

Depending on whether the repurchase of stocks is a capital transaction or a revenue transaction, various differences ― such as income classification, applicable tax rate and withholding obligation of corporation ― occur in taxation. Through the revised Commercial Act of Korea in 2011, reasons for acquisition of treasury stocks were widely recognized, and it became possible for the company to hold the treasury stocks for a long time without disposing of them. Nevertheless, no revision of the tax laws has been made since then, and there is a continuous dispute between taxpayers and tax authorities over the transaction around treasury stocks. The trends commonly found in tax decisions by Supreme Court about treasury stocks are as follows. First of all, The illegality of stock repurchase is treated as a separate matter from taxation effect of acquistion of treasury stocks. Secondly, if the corporation has not made efforts to sale treasury stocks since acquiring them or it was impossible to sale them to a third party in the first place, it is presumed that it was acquired for the purpose of stock redemption. Thirdly, the closer a corporation acquires it treasury stocks and the time of cancellation, the more likely it is to be judged as a capital transaction for the purpose of stock redemption. Although stock redemption and repurchase of stock have the same economic substance, regulatory arbitrage occurs between the two. For that reason, an incentive arises for taxpayers to avoid tax by pretending to having a revenue transaction, which is subject to a relatively low tax rate. The former Commercial Act required the acquisition of treasury stocks to be immediately cancelled or to be sold within a considerable period of time. However, the current tax law is not consistent with the current commercial law, in that treasury shares can also be retained for long-term under the 2011 revision of the commercial law. In order to solve this problem, when treasury stock acquisition is made, shareholders must unify by taxing dividend income as a deemed dividend(see amendments to section 17 of the Income Tax Act). From a corporation's point of view, it is necessary to specify that gains or losses on repurchase and sale of treasury stocks are not recognized as gross income or deductible expenses(see amendments to section 17, 20 of the Corporate Tax Act and section 11 of the Enforcement Decree of the Corporate Tax Act). Under the company law, it is necessary to reorganize the disposition of treasury stocks to be regulated by the preemptive right of shareholders(see amendment to Section 342 of the Commercial Act).