경영권 양도 관련 부당행위계산 제도의 부당성 판단 기준에 대한 연구

This study aims to analyze the criteria for determining the unfairness under the Unfair Calculation Denial System (UCDA) with a focus on transactions involving the transfer of management control between corporations and their shareholders. Furthermore, it seeks to propose measures to improve the system, thereby pursuing a harmonious realization of tax equity and the protection of taxpayers' rights. The tax authorities' efforts to combat tax avoidance have continued, and at present, virtually all economically irrational transactions between related parties that lead to a reduction in corporate tax liability are subject to the application of the Unfair Calculation Denial System (UCDA). However, even though the Unfair Calculation Denial System is a practical mechanism aimed at realizing the principle of fair taxation, the absence of appropriate checks and balances may allow such practices to develop into another form of state power abuse, ultimately infringing upon citizens‘ fundamental rights. Meanwhile, the legislature, for its part, has established the concept of "unfairness" as a requirement for applying the Unfair Calculation Denial System (UCDA). Although indeterminate and abstract in nature—providing little guidance on its meaning or function in isolation—this concept nevertheless serves as a criterion for restricting the application of the UCDA. According to case law and the majority view, the specific meaning of “unfairness” is understood as “economic irrationality.” The tax authorities determine the applicability of the Unfair Calculation Denial System (UCDA) by examining whether the transaction falls within the scope of the system, whether there is a discrepancy between the consideration and fair market value, and whether the transaction lacks economic rationality in light of its underlying circumstances and purpose. According to court decisions, the circumstances under which the transaction was conducted are typically analyzed in terms of the so-called “abnormality of the transaction” and the “taxpayer’s special circumstances.” Even if the transaction constitutes an abnormal act that falls within the types of acts subject to the Unfair Calculation Denial System, it is possible to determine whether economic rationality can be recognized through a comprehensive examination of the necessity of the transaction, the losses that must be borne in carrying out the transaction, and other relevant factors and purposes. However, as the criteria for assessing economic rationality have not been clearly established, it is currently necessary to review prior case law to examine the standards for such assessments. This study examines the limitations of the Unfair Calculation Denial System (UCDA) and explores possible improvements, focusing on the concept of economic rationality and relevant court decisions. In particular, the transfer of management control refers to the phenomenon whereby a corporation’s controlling power is transferred to another party. This area has become a primary focus of regulatory scrutiny by tax authorities, as it raises serious concerns about the potential abuse of taxing power for various reasons. (1) it involves one of the largest transfers of wealth within society； (2) the transfer of management control is not subject to legal regulations prescribed under the Commercial Act, such as shareholder resolutions；and (3) in the case of listed shares, adjustments to fair market value can be readily achieved through over-the-counter transactions This study focuses on transactions that involve the trasfer of management control, reflecting the distinct features of such transfers. Through this focus, this study seeks to improve taxpayers’ predictability regarding the UCDA, prevent abuse of taxing authority, and reduce unnecessary legal disputes.