리츠의 법적구조에 관한 비교법적 고찰

Abstract

The origins of the real estate investment trust, or REIT date back to the 1880s In the United States. At that time, investors could avoid double taxation because trusts were not taxed at the corporate level if income was distributed to beneficiaries. This tax advantage, however, was reversed in the 1930s, and all passive investments were taxed first at the corporate level and later taxed as a part of individual incomes. Unlike stock and bond investment companies, REITs were unable to secure legislation to overturn the 1930 decision until 30 years later. Following WWII, the demand for real estate funds skyrocketed and President Eisenhower signed the 1960 real estate investment trust tax provision which reestablished the special tax considerations qualifying REITs as pass through entities (thus eliminating the double taxation). This law has remained relatively intact with minor improvements since its inception. In order for a corporation to qualify as a REIT and gain the advantages of being a pass-through entity free from taxation at the corporate level, it must comply with the following Internal Revenue Code provisions: Structured as Corporation, business trust, or similar association; Managed by a board of directors or trustees; Shares need to be fully transferable; Minimum of 100 shareholders; Pays dividends of at least 90 percent of REIT's taxable income; No more than 50 percent of the shares can be held by five or fewer individuals during the last half of each taxable year; At least 75 percent of total investment assets must be in real estate; Derive at least 75 percent of gross income from rents or mortgage interest; Have no more than 20 percent of its assets consist of stocks in taxable REIT subsidiaries; In order to ease company-restructuring and modernize the real estate market, Korea enacted the Real Estate Investment Trusts Act in 2001. With the help of the fast amendment thereof in May, 2001, many CR-REITs has been established. Self-operating REITs, however, has not yet been established mainly because the Act does no corporate tax advantage which is available only for the CR-REITs. Even with the conclusive stage of company restructuring, Korea now is considering reforming the REITs regime. Long history and experience of the United States would provide with an ample standards and model law for successful operational setting in Korea.