후순위사채의 세법상 취급 및 관련 이자율의 시가 결정 －외국자본의 민자도로사업 투자 사례를 중심으로－

초록

In this paper, we examined the classification and problems of the interest expense of subordinated debt with both debt and equity characteristics, taking as an example the subordinated debt that was procured to promote the construction of the private funded roads with foreign capital participation. In addition, after reviewing the repudiation of wrongful calculation provisions of the Corporate Tax Act(“CTA”) and the precedent precedents for the rationality of the subordinated bond interest rates and the adequacy of the market price, the applicability of the principle of substantial taxation to the classification of taxation on hybrid financial products. Since the legal form of subordinated debt is a debt but shareholders before and after the re－ financing have subordinated debt, the risk and nature of it is virtually indistinguishable from the equity before re－financing., if the interest cost of subordinated debt is recognized as a expense, it is contrary to the principle of substantial taxation in calculation of tax base. The problem of dividing debt and equity is significant in that the controlling shareholder of a corporation finance a company in the form of debt even though it is in fact equity, it may cause tax avoidance to reduce corporate tax burden. In order to prevent this, the current the CTA does not allow for the deduction of the interest expense paid for above the normal borrowing rate, but the nature of the regulation on the market value of the borrowing rate is not clear. In order to prevent such problems, it is necessary to introduce a tax provision that allows interest expenses to be regarded as a disposal of retained earnings or non－deductible expenses for hybrid financial instruments whose economic substance is equivalent to equity, even though the form is debt. In addition, it is desirable to regard the interest rate on overdraft as the market value of the interest rate of the money lending transaction as an exemplary safe harbor provision. Finally, as with Adjustment of International Taxes Act(“AITA”), it is necessary to establish a provision in the Corporate Tax Law that restricts the deduction of interest expense, such as the thin capitalization rule.

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