企業 M&A의 租稅制度에 관한 硏究

Abstract

The current Korean economy is in a difficult situation, still being assisted by International Monetary Fund(IMF). It is high time that all the people make concerted efforts to overcome this difficulty. Yet, in reality the problem of moral hazard is aggravating the situation. In overcoming the difficult situation, corporate restructuring is urgently needed to improve firms' business environment and increase their competitiveness. In this context, many experts emphasize the importance of corporate M&A (Merger and Acquisition), and the need to review the existing tax system on this new corporate strategy. As Korea has a relatively short history of modern capitalism and modern firms, its corporate tax system also suffers from the same problem: the lack of past experiences. For instance, the newly revised corporate tax law, which is being implemented from January 1st, 1999, has made some important complementary measures regarding corporate merge, and established a new clause on corporate partition for the first time. The purpose of this study is to examine problems of the existing tax laws on corporate merge and acquisition and to review alternatives to improve them, so that more firms can increase their competitiveness through various M&A strategies. Regarding the tax system on acquisition, the following seven problems and alternatives have been identified. First, in a comprehensive transfer of business, it is not appropriate to levy value - added taxes even when it does not include the land and building for business use. Second, the obligation of an investor to make the second tax payment must be applied to listed companies in order to prevent a tax loss arising from the moral hazard of large stockholders. Third, the obligation of oligopolistic stockholders to pay an acquisition tax for the corporate property should be abolished, as it constitutes a double taxation. Fourth, a more strict regulation is required when authorizing the status of a loan interest for stock purchasing fund, as it will contribute to a healthier financial status of the firm. Fifth, the problem of levying a donation tax on thlrd parties who acquire stocks through a capital increase must be corrected by making improvements in the method and timing of stock evaluation. That way, we could prevent an absurd situation, where a donation tax is levied on those who have incurred a loss by selling their stocks at a price that is lower than the acquisition price. Sixth, it is all right to levy a donation tax on the acquisition of convertible bonds and bonds secured by preemptive rights for new stocks, as these bonds may result in future acquisition of stocks, but it must take the form of a joint liability to donation tax. Seventh, the system of levying a transfer income tax for theprofits from stock transfers must be applied more widely at an appropriate time, so that even listed stocks can be included. Regarding the tax system on merger, the following four problems and alternatives have been identified. First, since the law on corporate tax is based on the principle of not counting profits from property evaluation, profits accruing from merger evaluation should not be considered as earnings. The profits might be extracted from the original price when calculating a special surtax in case of future transfer. Second, the current tax law basically recognizes a trade right(goodwill) even when it was acquired from a corporate of special relationship, but more fair standards of evaluation must be stipulated by law. Third, the taxation on profit and loss from extinguishing and disposing of one's own stocks and combined stocks should not bedetermined by the authority's arbitrary interpretation. Rather, it must be stipulated in the law. Fourth, regarding the succession of deficit brought forward from the last year, the current regulation on necessary conditions for the succession should be eased. Fifth, It's different to tax when an owner takes capital gains tax in transferring and an acquirer disposes or extinguishes the stock while capital gains are added to liquidation income in taxation about combined stock. Therefore, taxation in those cases should be modified more accurately and reasonably in the law. Sixth, It's impossible to donate when a donor and a donee in aunfair merger case are the same. However, this case should be also stipulated in the law, not determined by the authority's arbitrary interpretation.