담합사례금의 손금 산입 여부-대법원 2017.10.26. 선고 2017두51310 판결-

Abstract

Recently, the Supreme Court announced a ruling to deny the inclusion in deductible expenses in case of illegal expenses such as the payment of collusion rewards. Believing that this precedent attitude was unfair, the investigator reviewed theories about the recognition of deductibility in the corporate tax law and the content of its rulings in three aspects, and came to the following conclusions: First, given the legislation cases and concepts of accounting costs of Germany and Japan, it will be natural to recognize inclusion in deductible expenses in principle regardless of legality in case of expenses to cause the reduction of net assets, which raises a need to include illegal expenses in the category of ordinary expenses that are generally allowed. Secondly, even in case of social order violations such as the payment of collusion rewards, they should be recognized as ordinary expenses with their form and size and the practice of the industry taken into account instead of insisting that they should be ordinary expenses unconditionally unless there is a very serious violation. Thirdly, an interpretation that there is no ordinary nature in expenses violating the social order does not agree with the system of Article 19 of Corporate Tax Act. Another interpretation that a reduction of net assets should be recognized as part of deductibility and denied as part of it only in case of a huge social order violation agrees with the interpretive system of Article 19. If they wish to maintain the interpretation involved in the concerned judgments, they will have to change the precedents through an en banc judgment. Finally, the recognition of non-inclusion in deductible expenses based on Article 19, Clause 2 of Corporate Tax Act does not strike balance with other articles of non-inclusion in deductible expenses based on specific regulations. The logic applied in the concerned judgments saying that certain expenses are not ordinary expenses based on the violation of the social order is likely to go against the clarity of tax law. When they make net income an object of taxation, take the acceptance of collusion rewards as profit, and deny their payment as deductible expenses, in particular, they will not only violate the principle of fairness but also disagree with the method of calculating corporate taxes by imposing taxes on net income. There should be a legislative action before denying them as deductible expenses.