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-

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reached in an unpublished 2006 decision of the Court.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...