조합 및 회사의 설립과 자본출연 -세법의 시각에서 본 법인격의 의의-

Abstract

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...