공매도 및 주식대차거래와 관련한 소득 과세

Abstract

[Purpose]In this study, we examined the issues surrounding income taxation in relation to short selling and the stock lending transactions associated with it. Additionally, we proposed essential supplementary institutional measures. [Methodology]To achieve this, we scrutinized relevant precedents and interpretations in Korea, and consulted discussions and legislation in the United States and Japan. [Findings]The topics addressed in this study, along with the proposed measures for income taxation purposes, can be summarized in the following two points. [Implications]Firstly, during stock lending transactions, a formal transfer of ownership occurs. A question arises as to whether capital gains should be taxed following such a formal transfer of ownership. While administrative interpretation asserts no taxation, judicial precedent stipulates that transfer tax is imposed upon the transfer of legal ownership. In cases of qualified loan transactions where economic risks and rewards are not transferred, it is economically prudent not to tax capital gains, even if formal ownership is transferred. A similar issue existed in the United States and was resolved through legislation. Secondly, there is the matter of taxing investors on gains and losses from short selling. Under Korea’s income tax law, which adopts an enumerative method, gains and losses from short selling are not subject to taxation. Moreover, it is not included in the financial investment income tax, scheduled for implementation from 2025 following a postponement. Legislative supplementation is necessary, and given that short selling differs from spot investment in stocks and shares similar characteristics with stock derivatives, it seems fitting to categorize it under the basic deduction group of 2.5 million won. In short selling, when borrowed stocks are returned and the short selling is concluded according to the open transaction doctrine, gains and losses are confirmed, and the time for taxation arrives.