자기주식 취득과 처분에 관한 현행 과세체계 평가 및 입법적 개선방안 검토 ―상법과의 관계를 중심으로―

In this paper, the examination focuses on whether the current tax system for stock acquisition and disposal transactions effectively aligns with the regulatory framework of the amended Commercial Act in 2011 and identifies any deficiencies or issues. The amended Commercial Act significantly relaxed regulations and procedures for stock acquisition and disposal transactions. These transactions inherently possess both asset-related characteristics (the transferability of treasury stock) and equity-related characteristics (economic substance similar to capital contributions and the issuance of new shares). The amended Commercial Act emphasizes the asset-related characteristics and treats it like regular transactions involving the purchase and sale of assets. Regarding tax laws, especially the Corporate Tax Act, it has not been updated to reflect the 2011 amendments to the Commercial Act since the taxation of gains from the disposal of treasury stock was introduced in 1998. Nevertheless, the current tax regime aligns with the asset-related characteristics of treasury stock emphasized by the amended Commercial Act. However, the current taxation system presents difficulties in distinguishing between types of income, particularly concerning the income classification (dividend income or transfer income) related to income received by individual shareholders at the stock acquisition stage. With the amended Commercial Act, it has become even more challenging to determine the purpose of acquisition since there are no time restrictions on disposal and the original purpose of acquisition may change over time. To address these challenges, potential legislative improvements in the current taxation system have been explored and compared to legislative examples from other countries, including Japan, the United States, and Germany. Considering these international practices, three potential solutions have been examined： A short-term approach that maintains the stance of the amended Commercial Act while enhancing certain criteria in the tax laws to classify shareholder taxation. A medium-term approach that aligns both the amended Commercial Act and the tax laws by treating stock transactions as capital transactions, potentially requiring the application of the statutory procedures for new share issuance upon stock disposal. A long-term approach that redefines income categories based on changes in the shareholder's substantial position when acquiring treasury stock.