資産流動化專門機構에 대한 課稅問題

Some Tax Issues of Special Purpose Vehicles in ABS Transactions

What is considered the most important of the taxation issues on special purpose vehicles(SPVs) with regard to asset-backed securitization(ABS) is whether special purpose company(SPC) is subject to corporate taxation or not. Different from organizations purposing to get profits through business activities, which have been assumed to be subject to corporate taxation, SPC plays merely a investment conduit through which cash flows from one to the other. The point is whether it is appropriate or not to impose corporation tax on such a conduit only because it is a legal person. For the issue, cash flow resulting from financial brokerage activities, namely, financial transactions is clearly distinguished from commissions, which are prices for financial services, in ABS with SPC, and only commissions should be taxed on in the broker of financial transactions. This is virtually imposing value-added tax on SPC. In other words, financial brokerage activities are basically regarded as taxation conduits. Even in these cases, however, taxation may be possible from market price basis if profits from financial transactions themselves are retrained for a while in the SPC stage before being transferred to the investor in order to prevent the taxation deferral. First, say the conclusion, it is fair to accept SPC as a taxation conduit in principle. At this point, US real estate mortgage investment conduit(REMIC) system should be noted. This is a system that acknowledges SPC related to mortgage-backed securities(MBS) as a tax conduit whatever legal form e.g. corporation, partnership, trust, etc. it takes, if it meets certain conditions. The characteristics of REMIC is the requirements that REMIC must be chosen in the first tax year and the interest issued by REMIC is restricted. Furthermore, if one ries to perform the same activities as REMIC without taking the form of REMIC, it becomes taxable mortgage pool(TMP), which is subject to corporation tax. To be acknowledged as a tax conduit, it must be an entity that performs such roles of a conduit thoroughly as not retaining profits in the stage of SPC no matter how it is dealt with judicially. In this way, entities that are not faithful to the roles as a conduit are not prohibited but imposed with economic burdens through taxation, which promotes the use of conduits with the object of facilitating the financial brokerage function. In Korea, if SPC is a trust it is a tax conduit fully and if it is a corporation it is subject to taxation partially. Thus even if both of them are SPC that produce the same economic effects according to judicial classification, they are dealt with taxation differently. Furthermore, SPC that is not faithful to the roles of a conduit may be regarded as transparent in terms of tax. Concerning this, in REMIC and FASIT, SPVs with the same economic effects, that is, which are faithful to the roles of a conduit, are treated without discrimination in taxation. This can be approved a desirable system under the principle of taxation in that it guarantees the neutrality of taxation, the basic principle of the tax law.