2003년 주요 예규회고

馬永旼(Young Min Ma) 한국세법학회 2004 조세법연구 Vol.10 No.1

기업의 해산과 세법

馬永旼(Young Min Ma) 한국세법학회 2005 조세법연구 Vol.11 No.2

기업이 해산을 하게 되면, 과세관청은 해산법인 및 해산법인의 주주에게 귀속되는 과세소득에 대하여 해산 시점에 과세를 하지 않는 경우 과세를 할 기회를 상실하게 된다. 이에 현행 세법은 해산시점을 중요한 과세의 계기로 보아 법인의 해산과 관련된 당사자들에게 과세를 하고 있다. 본 논문에서는 세법상 법인의 해산과 관련하여 각 당사자별로 구분하여 현행 세법규정에 따른 과세 전반에 대하여 살펴보고, 그로 인한 문제점을 지적하고 개선방안에 대하여 살펴본다. 구체적으로 살펴보면, 해산법인의 경우 해산시점까지 세법상 손익 인식기준에 부합하지 않아 과세되지 않았던 미과세소득에 대하여 청산소득으로 과세하고 있는 것과 관련하여, 청산소득의 계산시 세무상 이월결손금을 상계하는 잉여금에 자본잉여금까지 포함하는 것으로 보는 법인세법 기본통칙 80-2…2는 자본잉여금도 청산소득으로 보아 과세되는 것이 되므로, 세무회계상 출자 등 자본거래로 인하여 발생하는 자본잉여금에 대해서는 피출자법인의 과세소득으로 보지 않는 대원칙에 반하는 문제가 있다는 점을 지적한다. 또한 청산기간 중에 있는 법인의 의제사업기간 동안 발생하는 소득에 대하여 과세를 함에 있어, 해산 전 사업연도에서 발생하여 공제되지 아니한 세무상 이월결손금이 공제되지 않는 것으로 하는 현행 세법 규정의 문제점을 지적하고 입법적인 해결방안을 제시한다. 한편 해산법인의 주주와 관련하여서는 해산으로 인하여 얻게 되는 이익에 대하여 의제배당으로 보아 과세하고 있는 현행 세법상 규정과 관련하여, 그 성격상 배당의 성격과 투자거래로 인한 이익의 성격이 섞여 있는 점을 지적하고 이를 구분하지 않고 단순히 전체 소득에 대하여 의제배당으로 보아 과세하는 것의 문제점에 대하여 지적하면서 타국의 입법사례와 비교하여 그 개선방안에 대하여도 밝힌다. 출자자가 해산으로 인하여 손해를 보게 되는 경우 출자자의 세법상 취급에 대하여도 살펴본다. 마지막으로, 해산법인의 채권자에 대한 대손 인정 여부 및 해산법인의 청산인과 잔여재산을 분배받은 자 그리고 과점주주에 대한 제2차납세의무 문제에 대하여도 간단히 고찰한다. Upon dissolution of a corporation, if the tax authority does not assess tax on taxable income which belongs to such a dissolving corporation and its shareholders as of the dissolution time, it will lose the opportunity to assess tax thereon. Thus, under the current tax laws and regulations, the dissolution time is considered as the important taxable event for tax assessment and tax is assessed to parties concerned related to the dissolution of a corporation. In this thesis, this article will review overall tax assessment under the current tax laws and regulations in connection with the dissolution of the corporation per each classified party concerned, indicate the problems, and suggest any solutions. The detailed issues are provided below. In case of the dissolving corporation, it will be taxed on the liquidation income which has not been taxed until the time of dissolution since income recognition requirement has not satisfied under the tax laws and regulations. In calculation of such liquidation income, the surplus for accounting purpose will be deducted from liquidation income. If the dissolving company has net operating loss for tax purpose, it will be offset against the accounting purpose surplus if any. According to the Basic Rules 80-2…2, the tax authority views that even the capital surplus is included in the accounting purpose surplus for the purpose of offsetting with the net operating loss for tax purpose at the time of calculating the liquidation income, which makes such capital surplus is deemed as the liquidation income, and tax assessment is made thereon. This article will indicate the above practice runs counter to the principle that the capital surplus accruing from the capital transaction, such as premium capital contribution, is not deemed as the taxable income of the invested corporation. In addition, in assessing tax on the income accruing during the deemed taxable year of a corporation under liquidation, this article will indicate the problem of the current tax laws and regulations by which the net operating loss, carried forward accruing during the taxable year prior to the dissolution and not deducted yet, cannot be deductible and suggest the legislative solution. Meanwhile, with regards to the shareholders of the dissolving corporation, the current tax laws and regulations deem the income to be obtained due to the dissolution as dividends. This article will indicate that there is a mixture of characteristics of dividend and interest due to investment transaction, and a problem to assess tax by simply deeming it as dividend over entire income without classifying it. We will also compare with the legislative cases of other countries and suggest any improvement method. This article also reviews the investment loss treatment for investors due to the dissolution. Lastly, this article covers whether the allowance for bad debt will be admitted to the creditors of a dissolving corporation and secondary liability for tax payment of the liquidator, those to whom the residual asset is distributed, and majority shareholders.

국제투자펀드에 대한 조세조약 적용

마영민(Ma Young Min),오윤(Oh Yoon) 한국국제조세협회 2007 조세학술논집 Vol.23 No.2

Under domestic tax laws of many jurisdictions, collective investment funds are not taxed on the income received. They do not pay tax either on all income received or only on as much income as they distribute to the investors by dint of their legal characteristics. These traits as pass through entities under domestic tax laws of their establishment render themselves some significant problems when the issue of tax treaty application comes up. Their beneficial ownership under the provisions of tax treaties or substantial(economic) ownership in domestic tax laws as some corresponding concept to beneficial ownership to the income received by collective investment funds are usually questioned. Under domestic tax laws of Korea collective investment funds are treated as such pass through entities. According to administrative rulings by tax authorities the investors to the funds are to be taxed and therefore tax treaty with the state of its establishment is not applied at all. Usually the investor to a fund is regarded as beneficial owner or substantial owner of the income received by the fund as far as attributable to the investor. The position taken by tax authorities have a very strong logical argument that tax has to be levied on person who has earned substantial economic gains, which is also supported by practices and interpretations by many countries and the OECD. However it causes uncertainty as to the issue who are to regarded as a beneficial owner(or substantial owner) and ensuing administrative difficulties to a significant degree. Through our research in this article we could find out some very good examples including a system of tax treaties which deems a fund satisfying the requirements prescribed by tax treaties or domestic tax laws as a resident or beneficial owner. In regard to interest income earned by individuals the EU is now running a system within its jurisdiction by which interest income earned by individuals of member states is taxed by a state of each individual's residence. This system is supported by strengthened exchange of information. This system has been implemented only for a few years but seems to have increased certainty as to the taxation of interest income because it preempts the necessity of the application of tax treaties between member states. As a non-member state Korea may introduce the same system only on a bilateral basis, which is definitely to be pondered upon for its introduction though. Furthermore as a member state of the OECD, Korea may have to watch the movements as to the treatment of the collective investment funds in the Committee of Fiscal Affairs of the OECD. In this committee the treatment of collective investment fund as a resident or beneficial owner is being discussed now.

그룹사간 무형자산 이전에 관한 과세문제

마영민(Ma Young Min) 한국국제조세협회 2007 조세학술논집 Vol.23 No.1

Taxation of transactions involving intangible assets is not systematically established despite the importance and frequency of the transactions. Especially, transfers of intangible assets among affiliates within multinational corporations trigger numerous tax issues such as transfer pricing, withholding tax and tax treatment of co-development of intangible assets. In this dissertation, a comparative review on the tax treatment of transactions involving intangible assets was performed by examining Korean tax law, OECD Transfer Pricing Guidelines and U.S. tax law on the issue of the definition of intangible assets, transfer pricing of intangible assets and cost sharing arrangement. In relation to the definition of intangible assets, Korean tax law provides for the definition in the context of amortization, withholding tax on Korean-source income and co-development of intangible assets based on a cost sharing arrangement. However, it is only enumeration of definitions for specific intangible assets and the general definition has not been provided as to the scope of intangible assets which is constantly changing. Thus, the general definition of intangible assets is necessary under Korean tax law which covers the general characteristics of intangible assets. OECD’s approach is basically similar to that of Korean tax law, but distinguishes trade intangibles and marketing intangibles and treats the two categories differently. It is problematic to treat the transfer pricing issues stemming from transfers of intangible and tangible assets in the same manner considering the unique characteristics of intangible assets. However, Korean tax law gives the same treatment to the transfer pricing issues involving transfers of intangible and tangible assets. OECD takes the same approach while U.S. tax law takes a different approach. Regarding co-development of intangible assets, rules on cost sharing arrangements were newly introduced into Korean tax law in May 2006, and co-development of intangible assets is treated as such for tax purposes if the underlying cost sharing arrangement satisfies the requirements under the law. Korean tax law takes the same approach as that of OECD in that the cost should be reasonably shared based on the anticipated benefits. However, the Korean rule is unique in that the tax authorities may make tax adjustments if the amount of actual benefits is 120% or more or 80% or less of the amount of anticipated benefits.

The Tax Consequences of Restructuring of Indebtedness(Debt Workouts)

Dong Soo Kim(김동수),Young Min Ma(마영민),Hyun Seok Yoon(윤현석) 한국국제조세협회 2006 조세학술논집 Vol.22 No.1