외국법인 분할에 대한 미국 세법의 취급 : SK텔레콤의 인적분할 사례

[Purpose] The purpose of this study is to derive implications for ways to improve Korea's tax laws concerning the taxation of domestic shareholders who have invested in foreign corporations that undergo qualified reorganization. This will be achieved by examining the application of U.S. tax laws to reorganizations based on foreign law. [Methodology] Korean tax law currently only recognizes eligibility for the reorganization of domestic corporations, denying eligibility for the reorganization of foreign corporations. Consequently, domestic shareholders did not benefit from tax deferral for the qualified spin－ off of AT&T, a U.S. corporation in 2022, leading to investor backlash and legal battles. The approach of each country’s tax law to handling the reorganization of foreign corporations differs from Korean tax law. In our effort to improve Korea’s tax laws, we analyzed how the U.S. handles organizational reorganization based on foreign laws, using SK Telecom’s spin－ off in 2021 as an example of how American shareholders were taxed. [Findings] In the United States, eligibility is not denied simply because it is a foreign corporation. Individual provisions of U.S. tax law are directly applied to the reorganization of foreign corporations to determine whether the tax deferral requirements are met. SK Telecom’s spin－off, which had been tax－deferred as a qualified spin－off in Korea, did not meet the eligibility requirements under U.S. tax law. Therefore, it was treated as a taxable transaction for U.S. investors. The reason for this non－eligibility is that a significant portion of the total asset value of SK Square, a spin－off and new corporation, consists of investment assets such as SK Hynix shares. The business details of SK Square, which was divided into an intermediate holding company, did not meet the requirements for an active business under U.S. tax law. Additionally, SK Square, classified as a Passive Foreign Investment Company(PFIC) under U.S. tax law, is subject to special rules for the income taxation of its shareholders. These rules aim to prevent the tax deferral of passive income using offshore funds, differing from the taxation of general stocks or funds. [Implications] In this study, we present the following perspectives on the taxation method for domestic investors on foreign corporate reorganization. It is evident that there is a flaw in our country’s method of denying eligibility and not allowing tax deferral without reasonable grounds, such as the possibility of violating taxation rights, even if it involves the reorganization of a foreign corporation. However, the method of applying individual provisions of Korean tax law to the reorganization of a listed U.S. corporation, invested in by a large number of domestic investors, to determine whether the tax deferral requirements are met does not seem to be a highly recommended approach. It is believed that it will be challenging for a foreign corporation, a party to reorganization, to operate smoothly unless eligibility for domestic investors is determined based on domestic tax laws.