회사분할의 본질 및 과세이연의 이론적 근거에 입각한 현행 회사분할세제의 개선방안

The nature of a corporate division is that the assets held by the spin-off company are contributed to a new company and, in return, new shares are issued to the spin-off company (first-step transaction; in-kind contribution). Then the new shares are issued to the shareholders of the division company (second stage transaction, dividend in kind). The current corporate division tax system accurately reflects the fact that the nature of a corporate division is an in-kind contribution. Since the transaction process in Step 1 above involves the transfer of assets from the spin-off company to the new company, the corporate division will inevitably result in a transfer of assets (of course, the shareholders of spin-off company will receive new shares in Step 2 above, which becomes a taxable event to the shareholders). However, the corporate income tax of the spin-off company and the income tax of the shareholders of the company, which are taxed during the process, constitute huge transaction costs for the corporate division and are a major obstacle to the implementation of the corporate division, which may ultimately run counter to the purpose of introducing the corporate division system, which is to promote M&A. Therefore, in order to support the corporate division system, a special qualified corporate division system has been established to defer taxation until a certain date in the future if certain requirements (so-called “division qualification requirements”) are met. The theoretical basis for the above tax deferral is the maintenance of substantial identity before and after the corporate division. The current taxation system of corporate division is considered to have implemented the legislative intent to a certain extent, but it is desirable to improve it in the future in the following directions in order to increase the efficiency of M&A and improve theoretical consistency. First, in terms of rationalizing the division qualification requirements, the comprehensive succession requirements and the employment succession requirements, which have no precedent in the legal precedents of other countries and are not directly related to the essence of substantial identity, should be abolished (the comprehensive succession requirements can sufficiently achieve their purpose by interpreting and applying the independent business requirements). In addition, the requirement that a spin-off company must only issue shares and maintain the same shareholding ratio for a certain period of time is too rigid, and it is reasonable to follow the precedents of the United States and Japan and relax this standard. Next, to improve the consistency of the corporate division tax system, the regulatory arbitrage that occurs between spin-offs and in-kind contributions should be eliminated, and it should be clarified by law that the transfer of shares of another company held by a spin-off company to a new company is included in the concept of ‘transfer’ for tax purposes, and the corporate accounting standards, which have a structure that is contrary to the current corporate tax law, should be revised to achieve unity between the tax system and accounting. In the long term, it may be considered to introduce general anti-avoidance rules(“GAAP”) for corporate reorganizations.