담합사례금의 법인세법상 손금인정에 관한 연구 -대법원 2017. 10. 26. 선고 2017두51310 판결을 중심으로-

Abstract

Even if the expenses are illegal, they are included in deductible expenses in principle if they meet the requirements of Article 19 (2) of the Corporate Tax Act. However, if this cost violates the social order, they deny the inclusion of deductible expenses by precedent. The tax-law is the area dominated by the principle of trict nterpretation along with the basic principle of tax legalism. It is required to use the abstract and ambiguous concept of ‘social order’ as a requirement for deductible expenses under tax law. Article 19 of the Monopoly Regulation and Fair-Trade Act prohibits bid collusion as a type of unfair joint act. In this process, the Supreme Court Decision 2017Du51310 Decided Oct. 26, 2017 ruled that the expenditure itself is contrary to the social order and can not be included in deductible expenses because it can not be regarded as ‘generally acceptable normal cost’ or ‘directly related to profit’ as mentioned in Article 19 (2) of the Corporate Tax Act. This attitude of precedent is unfair in that it denies the inclusion of deductible expenses based on the fact that it corresponds to the cost against the social order, which is an abstract and ambiguous concept. Although it is not impossible to interpret the analogy or expand the interpretation of the law, it is necessary to strictly interpret it in relation to the tax that has a beneficial nature to the people, so it is desirable to use the judgment criteria that can judge whether or not to incorporate the deductible expenses individually considering the concept and nature of the gold money rather than the indeterminate concept. In the case of collusion rewards, the nature of the money is similar to entertainment expenses, so if it is handled according to entertainment expenses, it will not be necessary to use the unclear concept of anti-socialism