합병과세제도의 합리성 제고 방안 ―적격합병 관련 세제를 중심으로―

For mergers that are merely a readjustment of a formal reorganization and are carried out for business purposes, they are defined as qualified mergers and a special taxation system is established in which unrealized profits of the corporation amalgamated are not taxed at the time of merger and are taxed by transferring the unrealized profits of the corporation amalgamated to the merger corporation. A merger in which taxation is deferred through the application of special taxation provisions must be for the expansion or growth of the business and thus contribute to the future growth and development of the company. Therefore, the requirements for special taxation for qualified mergers must be established as a standard for determining whether a merger is for business expansion or growth. At the same time, it will be necessary to ensure that mergers for the purpose of tax avoidance rather than for business expansion or growth are not subject to special taxation treatment, and if it is confirmed that the merger was a merger to which special taxation treatment should not have been applied, it will be necessary to cancel the previously applied taxation treatment and at the same time impose punitive sanctions for attempting to obtain unfair profits. Based on the direction of this merger tax system, it is necessary to review the rationality of the current related tax system. Among the special taxation requirements for a qualified merger, the requirements for which it is not certain whether the requirements are met at the time of the merger and follow-up management provisions may be considered to integrate and regulate in the special taxation requirements for a qualified merger. It would be desirable to reorganize the special taxation requirements for qualified mergers into business purpose requirements, equity continuity requirements, and executives and employees’ continuity requirements so that it can be effectively and efficiently determined whether the merger is aimed at continuing business and efficient performance of business activities. The current business continuity requirements can be integrated with the current business purpose requirements and defined as business purpose requirements, while complementing the interrelationship between the business conducted before and after the merger. If it is necessary to separately regulate the follow-up management period, it would be desirable to establish a system that can flexibly respond to changes in social and economic circumstances by delegating the preparation of the regulations to the relevant enforcement decree. I believe that there is a need to reorganize the regulatory system for special taxation requirements for qualified mergers in a way that improves understandability and systematicity of the regulations. There is a need to add special taxation requirements for qualified mergers so that special tax treatment for qualified mergers does not apply to mergers for the purpose of tax avoidance, such as unfair mergers. In terms of tax neutrality, it would be reasonable to revise the regulations in order that the combined tax effect of applying the qualified merger tax special treatment at the time of the merger and adjusting it thereafter as a reason for additional collection, and the tax effect when the qualified merger tax special treatment was not initially applied, are ultimately calculated to be the same. Regarding the timing of canceling the effect of tax deferral, it is possible to consider a plan to revise the relevant regulations to cancel the tax effect retroactively to the time when the tax special treatment of the qualified merger was originally applied, not when the cases for additional collection occurred. and at the same time, impose an additional tax for underreporting and delayed payment as a sanction for violation of related requirements. In relation to the restrictions on inclusion of disposal losses as deductibles, it is necessary to consider revising the regulations on the period and amount to which the restrictions on inclusion of disposal losses as deductibles apply.