비상장주식의 평가제도에 관한 연구

Abstract

The intend of the backdoor listing(or reverse merger) is for the interested parties to have benefits, so that an unlisted company which is prospective and has an outstanding financial structure goes public by the combination with an listed company which is less prospective or has a poor financial structure. As the result of backdoor listing, the unlisted company can raise funds more easily and improve the financial structure of the listed company. However, the reality is not like that. In the early 2000s, there were great damages on the investors because of the financially-troubled companies coming to the KOSDAQ market by the backdoor listing and there still has been constant harmful effects in spite of the enforcement of the backdoor listing's requirement in 2006. The concepts and methods of estimating stock is established in the Inheritance and Gift Tax Law based on the objectives and aims of legislation, and the Capital Market Act has additional regulations. What is most different in value estimation of unlisted stock established between the Inheritance and Gift Tax Law and Capital Market Act is under calculation of valuation gain and loss in stock estimation; the Inheritance and Gift Tax Law uses the net gain and loss in the past, while Capital Market Act uses estimated profit. Such difference mat lead to sufficiently different results in the value estimation of unlisted stock. 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 law the appraisers' behavior of inflation 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.

Key Words : Back-Door Listing, Unlisted Stocks, Fair Valuation