ʻ파산선고 후 처분ʼ에 따른 양도소득에 대한 소고 - 담보권이 설정된 부동산의 양도소득을 중심으로 -

Real estate of an individual bankrupt debtor will be sold involuntarily to pay off debts after Declarations of Bankruptcy. Although Income Tax Act stipulates ‘Capital Gains generated from dispositions by Declarations of Bankruptcy’ as non-taxable incomes, in current taxation practice, Capital Gains generated from Auctions for exercise of Security Rights, which are Rights to Foreclose Outside Bankruptcy, of Bankruptcy Estate are taxable incomes. The scope of taxation of Capital Gains is a matter of legislative policy. Considering the revision history of Income Tax Act, it is difficult to say that the current taxation practice is against Income Tax Act. However, legislative improvement is needed to reduce the scope of taxation of Capital Gains regarding the dispositions other than Bankruptcy Procedures such as Auctions for exercise of Security Rights. There are some reasons for this. First, according to Debtor Rehabilitation And Bankruptcy Act, Capital Gains Taxes accrued after Declarations of Bankruptcy are ‘Tax Claims that are neither Bankruptcy Claims nor Estate Claims’, so Debtors are liable for the Capital Gains Taxes regardless of Bankruptcy Procedures even after completion of the Bankruptcy Procedures. Second, compared to dispositions through Bankruptcy Procedures, it is not consistent with Tax Egalitarianism to impose Capital Gains Taxes on dispositions other than Bankruptcy Procedures. Third, there have been socio-economic changes since the amendment of the Income Tax Act on the scope of taxation of Capital Gains generated from involuntary dispositions.