장애인 고용부담금의 손금산입 여부에 관한 연구

Abstract

The purpose of this article is to address the question of whether the Contributory charges under the Act on the Employment Promotion and Vocational Rehabilitation of Persons with Disabilities (hereinafter referred to as the ‘Employment of Persons with Disabilities Act’) are considered deductible expenses under the Corporate Tax Act. The key issue of this discussion is whether the paid contributory charges fall under ‘Public charges imposed as sanctions for non-performance of duties, or a violation of any of the prohibitions or restrictions imposed under statutes and regulations’ in Article 21, paragraph 5 of the Corporate Tax Act. First, this study addressed the existing theories and cases regarding the principle of including ‘public charges’ in deductible expenses under the Corporate Tax Act and the meaning of ‘public charges imposed as sanctions’ as an exception. In addition, this paper examined the meaning and types of public charges and summarized the discussion on the meaning and legal nature of the Contributory charges under the Employment of Persons with Disabilities Act. This article also addressed theories and cases on whether the Contributory charges are included in deductible expenses under the Corporate Tax Act. Afterwards, this study reviewed whether it is reasonable to consider the Contributory charges as deductible expenses. Regarding this issue, the conclusion varies depending on whether or not the Contributory charges are considered to have the nature of a sanction. After examining the arguments of the opposing views, this paper explained that it is appropriate to regard the Contributory charges as deductible expenses under the Corporate Tax Act. Under the Corporate Tax Act, public charges are, in principle, subject to deductible expenses. Exceptionally, 'Public charges imposed as sanctions for non-performance of duties, or a violation of any of the prohibitions or restrictions imposed under statutes and regulations’ stipulated in Article 21, paragraph 5 of the Corporate Tax Act. However, after the Ministry of Economy and Finance interpreted on February 21, 2018, that the Contributory charges are not included in deductible expenses, discussion sparked. The view opposing the inclusion of the Contributory charges as deductible expenses is that it will undermine the legislative purpose of the Contributory charges, which is to promote employment for the disabled. On the other hand, the view affirming the inclusion of the Contributory charges as deductible expenses is presented on the basis that the Contributory charges have the characteristics of adjustment charges and that they are a joint contribution to equalize the economic burden accompanying the employment of the disabled between business owners and have the nature of a business expense. The Ministry of Economy and Finance, the National Tax Service, and the Tax Tribunal have a negative stance on the inclusion of deductible expenses, but the recent rulings of the Seoul Administrative Court and the Seoul High Court, which is the appellate court, all took a positive view of the inclusion of deductible expenses. In conclusion, it is reasonable to consider that the Contributory charges are considered deductible expenses under the Corporate Tax Act. This is because, considering that the Contributory charges have the characteristics of a kind of business expense and that they are imposed without asking whether the employer has a justifiable reason, etc., they cannot be considered an administrative sanction.