Establishment of and Capital Contributions into Partnerships and Corporations -Meaning of Corporation or Juridical Personality from a Tax Perspective-

This paper attempts at identifying and evaluating the tax effects of establishing a business organization and contributing capital into the organization, covering a sole proprietorship, a partnership, a closed or limited company and a corporation. More specifically it addresses the following three issues: i) which of the investor and the business organization, is or should be the taxpayer for income taxation, ii) how the organization-level tax and the investor-level tax are or should be coordinated, if the organization becomes the taxpayer and iii) whether the investor is or should be taxed on the capital gain embedded in the property contributed to the organization. As clarified in the paper, existence or absence of juridical personality is the strongest factor in defining the tax effect for establishing a business organization and contributing capital into the organization. Nevertheless, the tax effect de lege lata does not mechanically depend upon the private law concept of corporation or juridical personality, and the tax statutes provide for a number of important exceptions for restructuring of business organizations or reorganization in the United States tax parlance. In de lega ferrenda, concept of juridical personality for tax purpose cannot rely on the private law either. The necessity to regard an organization as a...이 글은 서울대학교 BK21 법학연구단의 지원을 받아 작성되었음