자기주식취득의 성격 - 대법원 2019. 6. 27. 선고 2016두49525 판결을 소재로 -

초록

A stock repurchase is a transaction whereby a corporation buys back its own shares from the marketplace or shareholders. The Korean Commercial Act (the “KCA”) has a dual system of regulation on stock repurchases: prohibiting stock repurchases in principle, with several exceptions. One of the exceptions is permitting a corporation to repurchase its own shares under its name and for its own account through the securities market, or tender offer method. In this case, the acquisition amount shall be within the limit of allowing any dividend as prescribed in the KCA. There is a discussion of whether repurchased stocks fall under “assets” or “unissued shares” of the corporation. While the basic accounting theory treats repurchased stocks as unissued shares, there is still a different view in the area of commercial law and tax law. This Article revisits the legal nature of stock repurchases and tries to analyze the recent supreme court decision which ruled the nature of stock repurchases under the tax law. The current rule under the tax law classifies the nature of stock repurchases as either “capital transaction” resulting in income tax for constructive dividend, or “profit and loss transaction” resulting in transfer income tax, according to the intent of a corporation. This Article points out that the current rule may increase the possibility of legal disputes between tax authorities and tax payers.

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