개정 상법하에서 자기주식 취득에 관한 소득 구분 개선방안에 관한 연구 ― 대법원 2024. 9. 12. 선고 2024두42659 판결을 소재로 하여 ―

Recently, there has been a significant increase in the number of cases involving the acquisition and disposition of treasury stock using the spousal gift tax deduction limit. The taxpayer declared the consideration received for the acquisition of treasury shares of a corporation as capital gains, but the tax authorities considered it to be an agenda dividend and taxed it. Although the Supreme Court Decision 2024Du42659 Decided September 12, 2024(hereinafter referred to as the ‘Target Decision’) mainly deals with substantive taxation principles, the underlying reason for the tax administration to restructure the transaction is that it is unclear whether the consideration paid by a corporation to a shareholder for the acquisition of treasury shares is capital gains or dividend income. Accordingly, this article examines measures to improve the income classification regarding the acquisition of treasury stocks under the revised Commercial Act based on the target decision. The current tax law taxes shareholders differently in consideration of the purpose of the corporation's acquisition of treasury shares, but Article 342 of the Revised Commercial Act allows the corporation to continue to hold the acquired treasury shares, so it is not appropriate to apply the income classification criteria set forth in the Supreme Court Decision 2016Du49525 Decided June, 27 2019 (Shinju Industrial Co., Ltd. Case). As the revised Commercial Act provides for the acquisition of treasury shares in two ways (Article 341, Article 341-2 of the Commercial Act), it is necessary to classify income accordingly in the current taxation system. Since the acquisition of treasury shares within the limit of distributable profits is effectively a dividend, it is reasonable to tax the income received by shareholders from the acquisition of treasury shares within the limit of distributable profits of a corporation as dividend income. With reference to Japanese legislation, which has a similar commercial law system to Korea, it is necessary to consider taxing income earned by shareholders from the acquisition of treasury shares within the limit of distributable profits as dividend income, and taxing the amount of income earned by shareholders from the acquisition of treasury shares for specific purposes that corresponds to retained earnings is taxed as dividend income and the amount of income earned by shareholders from the reduction of capital as capital gains. If the income distinction between capital gains and dividend income is improved as described above, the consideration received by the shareholder for the shares will be dividend income, regardless of the transaction structure from the perspective of the taxpayer or the transaction structure reconstructed by the tax administration. Therefore, it is expected that the tax administration will significantly reduce the number of cases where the tax administration restructures the transaction to tax dividend income.