자본거래 요소와 손익거래 요소가 혼재된 거래의 과세문제

A corporation is a fictitious and artificial concept of ‘group’ that is established by its members for the purpose of carrying on business activities under the authorization of the national power, and that its interest as a group is differentiated from that of its members. The members of a corporation(capital contributors) transfer to the corporation ‘capital’ amount necessary for the conduct of business, and on the contrary, the corporation pays to its members its earnings and profits, or return received corporate capital to the members. This kind of transaction is called ‘corporate capital transaction’ under the Enterprise Financial Reporting Standards and corporate taxation laws. The amount of capital and net asset value of the corporation is increased or decreased as a result of such corporate capital transaction. However, such an incremental or diminution of net asset value is not subject to corporate taxation because from the standpoint of its capital contributors, the incorporation of a corporation is not the creation of a new ‘wealth’ to be subject to taxation but only has the meaning of expansion of business operators and vise versa, the payment of corporate profits and the redemption of corporate capital is not the absolute diminution of existing wealth. Then, there may be a case where a corporate capital transaction accompanies the transfer of an in-kind asset that contains an unrealized gain or loss. In-kind contribution, corporate merger or division, comprehensive exchange or transfer of shares and in-kind distribution of profits are typical types of such a corporate capital transaction. Since unrealized gain or loss inherent in an asset has the character of creation of new wealth or diminution of existing wealth, the transfer for price of such an in-kind asset is, in principle, the object of taxation treatment. Although the taxation treatment of such a transfer of in-kind asset is, as the case may be, deferred for the purpose of special economic policy, such deferral of taxation treatment does not mean that unrealized gain or loss inherent in the transferred in-kind asset is not the object of taxation. Therefore, the transfer of an in-kind asset containing unrealized gain or loss that is rendered as the means of corporate capital transaction, is named as ‘gain or loss transaction’. There are no exclusivity or conflict between the ingredients of ‘corporate capital transaction’ and ‘gain or loss transaction’. So, it is an erroneous notion that ‘gain or loss transaction’ accompanied by ‘corporate capital transaction’ should not be subject to taxation on the ground that the corporate capital transaction is not the object of taxation. As seen above, ‘gain or loss transaction’ accompanied by ‘corporate capital transaction’ may cause, due to its nature as such, other tax effects intrinsic in ‘gain or loss transaction’ than its basic tax effect, that is the realization of unrealized gain or loss. There are two special issues. First, in the case where an in-kind asset is transferred as the means of ‘corporate capital transaction’ in which the issuance of new shares is rendered, the difference, if any, between the fair market value of the in-kind asset and its transfer price(i.e., issuance price of the new shares) may be the target of the recalculation of taxable income. In this regard, a point not to be misunderstood is that the target of such income recalculation is the difference between the price at which the in-kind asset is transferred and the price at which new shares are issued, not the difference between the price at which the new shares are issued and the price or fair market value of newly issued shares. Secondly, there is the issue of what is the character and its taxation effect of the assumption of liability accompanied by corporate capital transaction such as corporate merger or division. The assumption of liability has basically the same effect as the payment of cash. Accordingly, looking narrowly at corporate merger, the amount of liability of disappearing corporation assumed by the existing corporation in the merger, together with the ‘merger price’ paid to the shareholders of the disappearing corporation is the price paid for the acquisition of the assets of the disappearing corporation, and thus becomes the object of depreciation. At this time, the assets acquired in the merger include the invisible assets that are not listed in the books and records of the disappearing corporation in addition to those listed in the books and records. Like this, since the amount of liability assumed by the existing corporation together with the ‘merger price’ constitutes the price for the acquisition of the assets acquired through the merger, when the sum of the amount of assumed liability and ‘merger price’ exceeds or is less than the fair market value of the assets acquired, such difference may be regarded as the partition of wealth and thus may be subject to taxation. Especially, in the case where the sum of the amount of assumed liability and ‘merger price’ exceeds the fair market value of the acquired assets, the deduction of such excess as depreciation cost of the acquired assets is, in principle, not allowed because of the absence of the basis for payment. Provided that the amount of assumed liability satisfies the general requirements for cost deduction, the deduction as such should be allowed.