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Research on Taxation Issues for Back-Door Listing

  • DONG-A LAW REVIEW
  • 2011, (52), pp.777-806
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

전병욱 1

1서울시립대학교

Accredited

ABSTRACT

The major taxation issue related to back-door listing is coupled closely with a question of how fair the valuation of the unlisted stock is. This study particularly presents the valuation problem associated with two tax court cases and their potential remedies. The difference in the two countervailing arguments boils down to whether to accept earnings estimates from independent appraisers, which are subject to the appraisers’ discretion and would lead to an overestimation of the unlisted stock, regarding the valuation of the stock. Because this overvalued amount would be accepted as a top-priority surrogate for the fair market value under the current gift tax law, it would not be possible to impose gift taxes on the major stockholder of the company, which would in turn make it very difficult to curb, by imposing huge gift taxes, the practice of ‘puffing’ the value of unlisted stocks through back-door listing. To remedy this problem, it is critical to regulate via capital market laws or gift tax laws the appraisers’ behavior of inflating estimates of future earnings. In particular, we could consider penalizing ex-post the appraisers whose estimates are subsequently found to deviate from the actual earnings by a large margin. Further, we could limit the extent to which an alternative valuation method is acquiesced to determine the fair market value of unlisted stock. Especially, we could confine to a minimum the exceptional cases in which earnings estimates (rather than actual earnings) can be a valuation base. Finally, we could give a high priority to the valuation method of unlisted stocks by which a fair market value is determined through a comparison of stocks of similar companies in the same industry.

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