부동산간접투자에 대한 과세문제 연구

부동산 간접투자에 적용되는 과세제도를 연구했다.

ABSTRACT The study of taxation system on indirect investment in real estate Hwang, Jinho Indirect investment in Korean capital market had been developed by means of investing mainly in stocks and securities, however, due to the slow and low growth of the economy of the world and Korea more interests toward real estates indirect investment is increasing and the funds are heading to real estates which are characterized primarily by stability and fixability, increasing insecure(unstable) factors in the domestic and foreign economy, low growth rate and low interest rate led indirect investment in real estate in Korea to grow and continouosly develop because of its advantage in terms of cashability and liquidity, however, since the indirect investment in real estates in Korea was introduced under very special circumstance in 1997 experiencing the restructuring finance from IMF when Korea encountered foreign exchange crisis, with purpose of restructuring enterprises led by government rather than following the market logic, there was not enough discussions on its fundamental and the arguments on the avoidance of tax by some foreign capitals and investment vehicles caused negative influence on the recognition of indirect investment on real estates.

Direct investment focusing mainly on lot-out of newly built buildings was dominant in Korean real estate market until global financial crisis occured in 2008 and indirect investment in real estate market was more focused on strengthening the market regulation rather than promoting(revitalizing, activating) the market. Real estate investment in major advanced countries, it is not only a common form of investment but also the scope of real estate is more broadly defined than Korea so that diversified type of indirect investment can be realized in the market.

Currently with the shift of recognition of the real estate investment from generating profit-taking(margin, capital gain) to generating income(rate of return) in Korean market, the importance of indirect investment on real estate market is growing consistently because different to direct investment, it is easier to obtain stable income source, it allows opportunity to invest in capital intensive asset with small amount of capital. In this regard, it is prospected that indirect investment in real estate will become the major way of investing form in Korea.

The most typical types of real estate indirect investment are REITs and funds, a kind of indirect investment instrument that investment institutions which are financed from investors manage real estate assets and return its income to investors(shareholders). In a sense that investors contribute to the real estates indirectly the concept of those two types is similar but the establishment requirement and management regulation is defined differently depending on its governing law and related judiciary policy.

This study aims to examine the legal structure of each acts that allows indirect investment in real estate in Korea, to focus on current status and taxation system related to it and through comparison with foreign countries cases, to discuss on the current taxation problems and ways to improve it(indirect investment in real estate in Korea).

The restructuring finance (bailout loan) provided from IMF in 1997 triggered by foreign currency crisis required intense level of restructuring as a result of going through the procedure of restructuring enterprises, there a need to invest and analyse professionally and systematically in real estates was raised so that diversified type of indirect investment in real estates was gradually allowed from 1998.

In 1998, the amendment to [TRUST ACT] allowed money trust and financial institutions were could finance funds to real estate development business through money trust, [ASSET-BACKED SECURITIES ACT] enacted in 1998 introduced liquidation system for ABS(Asset-Backed Securities) and in 1999 [SPECIAL PURPOSE COMPANIES FOR MORTGAGE-BACKED BONDS ACT] was enacted to allow the introduction of the liquidation system for mortgage-backed bonds.

The enactment of [REAL ESTATE INVESTMENT COMPANY ACT] in 2001 brought REITs form in the market, [INDIRECT INVESTMENT ASSET MANAGEMENT COMPANY ACT] established in 2003 was replaced by [FINANCIAL INVESTMENT SERVICES AND CAPITAL MARKETS ACT] legislated in 2007 and put in force from 2009.

The purpose of this study is to improve the taxation system to activate indirect investment in real estates and so that based on the substantial(actual) taxation principle, the fundamental principle of taxation, it will analyse the problems appeared in the subjects of double taxation self-managed REITs, foreign tax payment credit for indirect investment in real estates and problems of tax regulation on foreign SPC(Special Purpose Company) and will discuss ways to improve the current problems and lastly it will concentrate principally upon the suggestion of consistent taxation standard on real estate indirect investments.

KEYWORDS : Real estate indirect investment, REITs, Fund, Self-managed REITs, Foreign tax payment credit 국문초록 부동산간접투자에 대한 과세문제 연구 지도교수 : 박종수 제 출 자 : 황진호 우리나라 자본시장에서의 간접투자는 증권간접투자 위주로 발전하였으나 세계 및 우리나라 경제의 저성장 고착화로 부동산 간접투자에 대한 관심과 투자가 증가하고 있으며, 안정성과 고정성이 특징인 부동산에 환금성과 유동성에서 유리한 간접투자가 더해진 부동산간접투자는 대내외적 경제 불안요인의 증가와 저성장과 저금리 기조로 인해 지속적으로 성장‧발전하고 있으나 1997년 외환위기라는 특수한 상황에서 IMF 구제금융을 겪으며 도입된 우리나라의 부동산간접투자는 시장논리가 아닌 정부주도의 기업 구조조정을 목적으로 시작되어 부동산간접투자에 대한 근본적인 논의가 부족했고 일부 외국계 자본 및 투자사의 부동산간접투자로 인한 조세회피 논란은 부동산간접투자에 대한 인식에 부정적 영향을 끼쳤다. 2008년 금융위기 전까지 우리나라의 부동산 시장은 분양위주의 부동산 직접투자 중심이었으며 과열된 부동산시장에 대한 투기억제와 시장안정을 위한 규제강화로 인해 부동산간접투자 역시 활성화보다는 규제에 중심을 두고 있었다.

주요 선진국의 부동산 투자는 간접투자가 보편화되어 있고 부동산을 정의하는 범위 또한 우리나라보다 넓게 규정되어 다양한 형태의 부동산간접투자가 이루어지고 있다. 우리나라의 부동산 투자에 대한 인식도 시세차익을 위한 투자보다 수익률을 위한 투자로 전환되면서 부동산간접투자의 비중이 지속적으로 커지고 있으며 직접투자와 달리 간접투자는 투자회사나 운용사를 통한 전문적인 투자로 부동산을 통한 안정적 수익확보가 용이하며 적은 자본으로도 큰 규모의 부동산에 간접적으로 투자할 수 있는 기회를 제공한다는 점에서 향후 우리나라 역시 부동산간접투자가 주요 투자방식이 될 것으로 전망한다. 부동산간접투자의 대표적 유형에는 리츠와