合併消滅公司股東 之換股課稅問題研究

A Study on Taxation Concerning the Exchanging Shares of Dissolved Company Being Merged

企業以併購的方式進行組織調整，具有節省生產成本、產生經濟規模、提高市場占有率、阻礙競爭對手、獲取較高利潤等功能，以發揮企業經營的效率。當公司以股份轉換的方式進行合併，合併換股訊息發布後，投資人依據換股比率計算之價格，與參與合併公司的市場價格可能有差異，因而會有投資人以套利為目的買賣股票。投資人因合併套利所賺得的利益該如何課稅，財政部在97年發布解釋令，明定課稅的原則，認定在換股合併時，合併消滅公司股東取得合併存續公司之股票，價值超過原出資額的部分，屬消滅公司股東的股利所得。但這樣的課稅原則，在實務上造成了極大的爭議，為求課稅的合理性，本文參考美國內地稅法的規定，提出課稅方式修正的建議，以期能以更合理的方式，對賺取合併套利的投資人課所得稅。

Merger can help business for purposes of reorganization and optimal operation efficiency. Its benefits include saving production costs, generating economies of scale, increasing market share, hindering competitors, gaining higher profits, etc. Share exchange means that a company transfers all its issued shares to another company in exchange for shares, cash or other assets in that company as the consideration for shareholders of the transferring company. In the merger by a company, the Board of Directors shall, in the course of conducting the merger, in the best interest of the company, fulfill its duty of care, and a director who has a personal interest in the transaction of merger shall explain to the Board meeting and the general meeting the essential contents of such personal interest and the cause of approval or dissent to the resolution of merger. When news of the share exchange released by parties involved in a merger, some investors will engage in“Merger Arbitrage”with the intention to profit from the price difference in the stock exchange ratio. How should the situation be taxed when investors make profit from a merger arbitrage?In 2008, Ministry of Finance published a tax ruling clearly stipulated tax treatment for such scenario. It is recognized that the Share exchange of merger, the stockholder of dissolved company acquired the stock from surviving company, it's value exceed original capital contribution of the dissolved company should be included as dividends income for shareholders of dissolved company. However, the said ruling caused great controversy in practice. This paper referenced to the provision of U.S Internal Revenue Code and proposed amendments to current tax ruling in hope that there will be a more reasonable tax treatment for investors making profit from the arbitrage in the future.