불공정합병 당사법인들의 주식을 함께 보유한 법인 주주에 대한 부당행위계산부인과 익금 — 대법원 2022. 12. 29. 선고 2018두59182 판결의 ‘통산 방식’ 비판 —

When two corporations merge by unfair merger ratio, the shareholders of one corporation incur loss and the shareholders of the other corporation obtain gain. The Corporate Tax Act (“Act”) imposes tax on the first (corporate shareholders) according to the law of denial of Unfair Transaction and Accounting. The Act also imposes tax on the second (corporate shareholders) according to the law of Gain. Would both laws of The Act above apply to corporate shareholders holding shares of both corporations in unfair merger? The Supreme Court Decision of 2018du59182 rendered on December 29, 2022 (“the Decision”) answered for that issue. The Supreme Court held that such corporate shareholders holding shares of both corporations in unfair merger would be taxed according to either the law of denial of Unfair Transaction and Accounting or the law of Gain, depending on whether such corporate shareholders would incur net loss or obtain net gain. The Supreme Court struck down the decision of the Appellate Court which held the decision of the Trial Court. The Decision appears to be clear and concise, however it could cause various problems depending on the shareholder composition, share ratio of shareholders and special relationship of shareholders. The fundamental reason for the problems is that the approach adopted by the Supreme Court (“the Approach”) excludes both loss and gain as far as they are overlapped. The problems are as follows. First, the Approach may cause unfairness between the corporate shareholders holding shares of both corporations and other shareholders because it fails to consider the share ratio of shareholders. Second, the approach may weigh in favor of the corporate shareholders holding shares of both corporations because it fails to reflect their dual status as shareholders of both corporations in merger. Third, the approach may alleviate the tax burden of the corporate shareholders holding shares of both corporations and, as such, aggravate the tax burden of other shareholders. Fourth, the approach may fail to find a consistent and logical rule to be applied for the allocation of the net loss of the shareholders of merging corporation to the shareholders of merged corporation. Fifth, the law of both Denial of Unfair Transaction and Accounting and Gain may be avoided without great difficulty under the approach by tax planning. Sixth, the approach seems not to be in harmony with other means against unfair merger under the Commercial Act, etc.