부채이전(debt push-down) 거래의 과세 문제에 대한 국제적 동향의 검토와 시사점

This article examines tax issues arising from the ‘debt push-down’ during the M&A transactions of multinational enterprises in which the acquiring company acquires the target company through borrowing and then deducts interest expenses, focusing on cases in major countries including Europe, Australia, and Japan, and also analyzes a similar case in Korea in light of its domestic tax law interpretation. In Europe, tax disputes frequently arise over the deductibility of interest expenses due to debt push-down, and each country has its own legislation to respond to this, such as the Specific Anti-Avoidance Rule (SAAR) and the General Anti-Avoidance Rule (GAAR). The European Court of Justice has recently taken the position that even if interests are paid in line with the arm’s length principle, interest deduction can be denied if the borrowing transaction lacks economic rationality as being wholly artificial arrangement. Meanwhile, the Universal case decision of the Supreme Court of Japan presents the legal theory of ‘unfairness’ as whether the overall transaction lacks economic rationality or whether there is a business purpose that is a reasonable reason for the transaction other than the reduction of tax burden. In Korea, SAAR such as the thin capitalization tax rule and excessive interest limitation rule, and GAAR such as the substance over form taxation principle of the National Tax Basic Act can be applied to debt push-down transactions. In terms of interpretation theory when applying these rules, even if the specific application requirements of SAAR are not met, if the transaction involves tax avoidance purposes and lacks economic rationality in the overall structure of the step transactions, GAAR can be applied as a supplement. Ultimately, what is important is how to define the tax avoidance purpose and economic rationality of the transaction, and we need to continue to develop legal theories on these aspects.