익명조합의 과세문제에 관한 고찰

• 영문명: Some Tax Issues on Anonymous Partnership
• 발행기관: 경희법학연구소
• 저자명: 김병일(Kim Byung-ll)
• 간행물 정보: 『경희법학』제42권 제3호, 77~110쪽, 전체 34쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2007.12.30

영문 초록

The advantages of carrying on joint ventures through an anonymous partnership agreement are directly related to both their anonymity and simplicity in funding procedures, whereby funds are procured from several sources through a variety of anonymous partnership agreements. Moreover, anonymous joint venture partnerships are considered to be an ideal form of business in that risk and profit are rationally distributed not only to the anonymous partners but also to the owner, based on methods of utilization. and it can be said to take role as means of direct financing. As such, investment areas in which the anonymous partnership is often utilized include the promotion of culture funds and venture investments. Given the above, it is clear that the anonymous partnership is not a joint venture relationship typical of the partnerships described in the civil law. Anonymous partners remain behind the owner while the main body of the business remains in the hands of the partner-owner who procured the relevant financing. Partner investments are attributed to the owner s assets and the partners have no responsibility in regard to creditors. Despite the atypical nature of this arrangement, taxation on anonymous partnerships is carried out according to the rules of a typical partnership in that profits gained by the organization are taxed as if each member of the organization had directly gained profits himself. This pass-through taxation is carried out based on the conduit theory. In this regard, there remain points of confusion regarding business taxation under the current anonymous partnership system. The definition of joint venture, the distinction of venture partners, the application of the joint venture taxation system, and the method of taxation itself, need to be reformed. A rationalized partnership taxation system should be introduced instead. Issues to be considered before the introduction of such a system can be summarized as follows. First, the place of anonymous partnerships under the tax law in general should be clarified. Second, earnings distributed to anonymous partners based on profit sharing should be determined according to the various circumstances of the partnership. These include the contents of the anonymous partnership agreement itself, the form of the anonymous partnership, operating status, etc. Third, it is necessary to develop a means by which the business of the anonymous partnership can be matched to the taxation period for the partnership member. Fourth, to prevent the evasion of progressive income taxes by window-dressing of the profit/loss sharing ratio between the interested parties, measures to prevent the manipulation of loss sharing should be arranged by temporary contract. Such arrangements should take into account the amount of investment, profit sharing, loss sharing, etc. In keeping with simplicity in taxation, and considering that the profit dividend for the members is shortly not reliable, it seems proper to make distributions depending on ownership share. Hereafter, in preparing the application for partnership taxation, it is suggested to contribute by the owned share amount in case of applying SEET (substantial economic effect test) in USA and absent of pre-contract and fail for profit distribution to pass SEET. Fifth, where investment by anonymous partnership is exercised as the initial investment vehicle for transferring the status of anonymous partners, systematic measures to adjust the basis of investment should be devised. This is because problems such as double taxation of profits and double counting of loss may occur. Sixth, where the sharing except the profit that concerns the anonymous partnership among the assets including the money shared out from the anonymous partnership exceeds the investment anonymous partners have put in, it may be handled separately from the profit/loss of the anonymous partnership itself. Finally, preventive measures related to internationa

목차

l. 머리말

ll. 익명조합의 법적 구조

lll. 우리나라의 익명조합 과세제도

lV. 익명조합에 대한 과세문제

V . 맺음말

키워드

익명조합 익명조합계약 공동사업과세 손익분배 손실조작 기준가격 국제조세회피 anonymous partnership anonymous partnership agreement partnership taxation profit & loss sharing manipulation of loss basis international tax evasion