유동성공급자의 ELW 인수ㆍ판매거래 관련 과세 검토 - 대법원 2018. 8. 30. 선고, 2016두51696사건을 중심으로-

초록

This thesis is focusing on the analysis of 2016du51696(Supreme Court 2018. 8. 30.). Plaintiff, foreign securities company, undertook Equity Linked Warrant (ELW) from an issuing company. The undertaking price was much higher than Fair Market Value (FMV). Plaintiff sold out that ELW at FMV. The loss was reported as taxable loss to defendant. However, defendant did not agree at that report. Defendant decided the reported loss cannot be taxable loss on the point of "Substance over Form". That is because (i) Plaintiff hedged all losses from undertaking and sales of ELW, and (ii) enjoyed time value of money using tax system. Supreme Court quoted plaintiff's claims. As a first step, Supreme Court set a standard for applying the "Substance over Form" rule. That was "the form or process of the transaction chosen by the taxpayer is nothing but a means of tax evasion". However, that standard excessively reduces judiciary discretion to consider equality. As the subjective requirements for the application of "Substance over Form", this thesis suggests that court should judge which side outweigh between the purpose of tax avoidance and the purpose of business. As a result, the rule of Substane over Form could be applicable only if the purpose of tax evasion outweigh that of business. In this case, both business purposes and tax avoidance purpose had to be considered. However, the purpose of tax evasion could not outweigh that of the business. In addition, the levied tax was too large compared to the gained profit. As a result, the rule of "Substance over Form" could not be applied.

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