전환사채에 부여된 콜옵션에 대한 과세상 쟁점 고찰 - 부당행위계산부인을 중심으로

This study investigates the legitimacy of tax assessments arising from the Financial Services Commission’s 7th Supervisory Guideline issued in 2022, which mandates that entities adopting K-IFRS recognize call options embedded in convertible bonds (CBs) as separate derivative assets. Specifically, it analyzes whether the corporate income tax assessments wherein the designation of call options to major shareholders was treated as a Denial of Improper Transactions and Calculations, and corresponding income was attributed to the designees are consistent with the capital gains taxation framework under the Corporate Tax Act and the Inheritance and Gift Tax Act, as well as with the doctrinal and jurisprudential principles governing the Denial of Improper Transactions and Calculations. Traditionally, benefits derived from CB-related transactions have been categorized as capital transactions and excluded from corporate taxation. In contrast, the present case treats the call option designation as a type of profit-and-loss transaction, marking a significant departure from prior practice and giving rise to legal controversy. The tax authorities, in applying the Denial of Improper Transactions and Calculations, referenced the “paid” transfer or designation of call options as the appropriate arm’s-length comparator. However, as CB call options are not legally transferrable and the designation of option holders for consideration is not feasible in practice, the authorities’ reliance on an unattainable standard renders the assessment legally flawed. This study further clarifies that the frequently cited “Hyundai Elevator” case_purported to exemplify a paid call option transaction_in fact constitutes an acquisition of liabilities rather than a transfer of assets, thus invalidating its applicability as a precedent. It is therefore concluded that paid transfers or designations of call options do not represent viable alternatives available to issuing corporations. Moreover, the designation of a third-party call option holder, when compared with a direct exercise involving cash outflow, enhances capital structure and yields economic benefits to the issuer. As such, the transaction exhibits economic rationality and does not meet the substantive criteria for a Denial of Improper Transactions and Calculations. From a tax policy perspective, comparable transactions, such as underpriced rights offerings or the issuance of discounted convertible bonds, are typically subject only to gift tax. Imposing an additional corporate tax solely on the designation of call options undermines the principles of consistency and equity in taxation. Furthermore, while the revised accounting guidelines require CB call options to be recognized as derivative assets, such accounting treatments must be reconciled with tax law principles based on the realization doctrine. As unrealized gains are not recognized for tax purposes, adjustments should be made accordingly. Therefore, the call option designation should not be interpreted as an external transfer of taxable corporate assets. Additionally, any denial of such transactions under the Denial of Improper Transactions and Calculationsprovision necessitates the establishment of clear and foreseeable valuation standards to ensure the predictability of tax burdens for taxpayers. Given the inherently punitive nature of the Denial of Improper Transactions and Calculations, which results in double taxation, its application requires strict scrutiny. In the context of call option designations, the potential for even triple taxation depending on the treatment of acquisition costs exacerbates concerns of excessive taxation. Accordingly, any regulatory action aligned with changes in accounting standards must be preceded by legislative clarification. Absent such statutory basis, the direct application of the Denial of Improper Transactions and Calculationsprovision based solely on a change in accounting guidance appears unjustified and demands reconsideration. This article constitutes the first academic attempt to examine call option designations in CBs through the lens of tax law, thereby complementing prior discourse centered primarily on financial and accounting perspectives. It is hoped that the present analysis will serve as a foundation for future legislative reform and the development of coherent tax policy in this area.