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자회사(子會社)의 임직원(任職員)이 외국법인(外國法人)인 모회사(母會社)로부터 받은 주식매수선택권(株式買受選擇權)과 관련된 소득과세(所得課稅)의 방법(方法) -대법원 2007. 10. 25. 선고 2007두1941 판결- : How to Tax a Stock Option Granted by a Foreign Parent Company -A Review on the Supreme Court Decision, 2007 Du 1941 of October 25, 2007-
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- Authors
- Issue Date
- 2008
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.49 No.4, pp. 732-771
- Keywords
- 스톡옵션 ; 주식매수선택권 ; 실현주의 ; 권리확정주의 ; Employment Income ; Realization Principle ; Taxable Event ; Stock Option ; Personal Income Tax
- Abstract
- The Korean Supreme Court (hereinafter the Court) rendered on October 25,
2007, a landmark decision on when and how to tax a stock option granted by a
foreign parent company to an employee who provides her service for a Korean
subsidiary or a Korean branch of a foreign subsidiary.
Firstly, the Court in this decision held that the grant of a stock option itself
is not a taxable event, but the spread between the fair market value of the
shares and the option price (hereinafter the Gain) should be taxed as employment
income when the option is exercised, which conclusion was already
reached in an unpublished 2006 decision of the Court.
Secondly, the Court held that, as long as the grant of a stock option is to a
certain extent connected with employment, then the Gain should be qualified as
employment income regardless of whether or not the taxpayer is employee of
the grantor of the stock option.
Thirdly and lastly, the Court accepted the position long taken by the tax
authorities that, if the stock option is granted by a foreign parent company, then
the Gain falls within the category of Eul-type employment income, which
means that the Korean subsidiary, who is the legal employer of the taxpayer, is
not subject to any withholding requirement under the Korean tax law.
I believe that the first part of the holding is correct because, under the
Korean income tax law, not just any betterment of ones economic position is
recognized as income, but it is always necessary to find the most appropriate...
- ISSN
- 1598-222X
- Language
- Korean
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