During the financial crisis in the 1990s, the asset securitization was regarded as one of the most innovative and effective financing tools. The Korean governments implemented the Act on Asset Backed Securitization Act ("ABS Act") in order to support ...
During the financial crisis in the 1990s, the asset securitization was regarded as one of the most innovative and effective financing tools. The Korean governments implemented the Act on Asset Backed Securitization Act ("ABS Act") in order to support and to facilitate clearing the accumulated non-performing loans ("NPL") of the financial institutions during the financial crisis. The ABS Act played an important role in activating the asset securitization and resolving the NPL of financial institution.
However, the asset securitizations have been widely used as one of efficient methods to manage and to raise funds by targeting the normal bonds for hedging the credit risks or cultivating the profits from the transaction, rather than focusing on the NPL in recent years. In this regards, the number of asset securitizations not regulated by the ABS Act ("unregistered asset securitization") has significantly increased due to the stringent conditions and procedures required under the ABS Act for various transactions.
The most important tax implication of asset securitizations depends on whether it would be regarded as a true sale for tax purposes. In this regard, Article 13 of ABS Act provides the required conditions for the true sale of asset securitization, which is regulated under ABS Act ("registered asset securitization"). Furthermore, in accordance with the tax ruling and the interpretation 52-14 of the Korea Financial Accounting Standards, the tax and accounting treatment for registered asset securitization should follow the treatment under the Article 13 of the ABS Act. Therefore, the registered asset securitization shall be treated as the true sale for tax purposes as it satisfies the condition prescribe in Article 13 of ABS Act.
However, as there are no specific criteria for true sale of unregistered asset securitization, the determination of true sale issues for the unregistered asset securitization should be based on general tax principles on a case-by-case basis.
The focus of this study is to review tax effects of the unregistered asset securitization upon being treated as a true sale with emphasis onthe case of Asset Backed Commercial Paper ("ABCP"). In particular, the study aims to review the general tax guidelines of true sales which would be applicable to the unregistered asset securitization and to compare the tax implications depending on whetherthe transaction is treated as true sale. The conclusion of the study can be summarized as below.
First, considering that a Special Purpose Vehicle ("SPV") is basically a separate legal entity, an asset securitization should be treated as a true sale for tax purposes, unless treated differently from legal perspectives. In this regard, the substance over form doctrine under Article 4 of Corporate Income Tax Act should be restrictively applied. In addition, although such an asset securitization is regarded as a secured transaction for accounting purposes, the same treatment cannot necessarily be apply for tax purposes as the purpose and interpretation of the tax law could deviate from those of accounting principles.
Second, the fact that the tax implication may be subject to change depending on whether the unregistered asset securitization can be regarded as true sale implies the uncertainty of the future cash flow. Therefore, such uncertainty should be carefully reviewed at a planning stage. In details, various tax aspects such as the income tax consequence on capital gain or loss from disposal of the asset, the entertainment expense, the dividend received deduction, and the education tax for financial institutions will be subject to change depending on the treatment of asset securitization whilethe practical guidance such as withholding obligations should also be taken into consideration.
Lastly, the specific criteria and conditions of true sale for the unregistered asset securitization should be provided in order to minimize the tax uncertainty. In consideration of the tax neutrality, such criteria should not differ from the ones set out for the registered asset securitization solely based on the registration status of the asset securitization.