자기주식 취득거래와 실질과세원칙

Abstract

The Commercial Act was amended in 2011, and many restrictions on treasury stock transactions were removed. It is desirable that the taxation system for treasury stock transactions changes in accordance with the amendment to treasury stocks of the Commercial Act. Nevertheless, the provisions or the legal principles on the taxation of treasury stock transactions created under the past Commercial Act are still applied.BR One of the representative legal principles that have been applied to treasury stock transactions is substance-over-form taxation principle in determining the type of income of shareholders. The substance-over-form taxation principle is one of the most important theoretical and statutory grounds to regulate tax avoidance.BR The judicial precedents have clarified that dividend income due to capital transactions and capital gains from profit and loss transactions are classified according to the acquisition purpose of the issuing corporation. And the Supreme Court have judged whether a treasury stock transaction is a capital transaction or a profit and loss transaction based on the substance-over-form taxation principle. It is necessary to rethink whether it is appropriate to maintain such a rule under the current Commercial Act. The purpose of this study is to reevaluate past cases applying the substance-over-form taxation principle from the viewpoint of current Commercial Act.BR And the application of the substance-over-form taxation principle to treasury stock transactions is in the area of