비등가(非等價)거래가 자본거래와 손익거래 및 혼합거래에 미치는 과세상 영향―고가의 현물출자를 중심으로―

This paper primarily delves into the taxation effects of non-equivalent transaction on capital transaction, profit and loss transaction, and hybrid transaction in the case of high priced in-kind contribution. The key issue is whether “loss” occurs on the part of an investee in the case of high priced in-kind contribution. The question raised herein stems from the viewpoint that in-kind contribution falls under capital transaction involving contributions between an investor and an investee, and that profit and loss cannot occur from capital transaction. At the core of such question lies the argument that an investee merely issued and delivered new shares as quid pro quo for contributed assets and that outflows of the company’s assets had never occurred. This is quite a complicated and challenging issue that may cause confusion within the realm of corporate accounting. The reason being that such raises the fundamental issue of having to examine the inherent nature of companies and shareholders, capital transaction, and profit and loss transaction and how such transactions undertaken in the form of non-equivalent transaction may affect companies and shareholders from a legal and economic perspective, not to mention having to analyze the taxation effects thereto from the standpoint of our tax law system. There have been many discussions that in-kind contribution is a transaction that combines a profit and loss transaction and a capital transaction. However, it appears there have not been many studies regarding, in case an in-kind contribution is made at a high or low price, specifically what effects such a transaction has on the profit and loss of the investee and what process it has. This paper specifically demonstrates the fact that the investee have losses when receiving an in-kind contribution at a high price by comparing a capital transaction and a profit and loss transaction, and examines how such consequence applies to corporate restructuring schemes such as merger or all-inclusive exchange/transfer of shares, and then how the foregoing discussions are related to the provisions on rejection of calculation by wrongful act in the Corporate Tax Act and what problems they have.