S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 43, Number 1/4 (2002)
조합 및 회사의 설립과 자본출연 -세법의 시각에서 본 법인격의 의의-
Establishment of and Capital Contributions into Partnerships and Corporations -Meaning of Corporation or Juridical Personality from a Tax Perspective-
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.43 No.1, pp. 302-334
- This paper attempts at identifying and evaluating the tax effects of establishing
a business organization and contributing capital into the organization, covering a
sole proprietorship, a partnership, a closed or limited company and a corporation.
More specifically it addresses the following three issues: i) which of the investor
and the business organization, is or should be the taxpayer for income taxation,
ii) how the organization-level tax and the investor-level tax are or should be
coordinated, if the organization becomes the taxpayer and iii) whether the
investor is or should be taxed on the capital gain embedded in the property
contributed to the organization.
As clarified in the paper, existence or absence of juridical personality is the
strongest factor in defining the tax effect for establishing a business organization
and contributing capital into the organization. Nevertheless, the tax effect de
lege lata does not mechanically depend upon the private law concept of
corporation or juridical personality, and the tax statutes provide for a number of
important exceptions for restructuring of business organizations or reorganization
in the United States tax parlance.
In de lega ferrenda, concept of juridical personality for tax purpose cannot
rely on the private law either. The necessity to regard an organization as a...