부당한 공동행위에서 입찰담합금에 대한 과세 법리 한․일 비교

Abstract

Deductible expenses shall be the amount of losses incurred by transactions which reduce the net assets of a corporation, excluding return of capital or financing, disposition of surplus funds, and what is provided in the Corporate Tax Law. Deductible expenses shall be losses or expenses incurred in connection with the business of a corporation which are generally accepted as ordinary or directly related to profits. The Corporate Tax Law provides requisites for deduction; business relevance and ordinaries as well as business relevance and profit relevance. Business relevance and ordinaries are stipulated as included requisites since business relevance and profit relevance are in fact considered as almost same concepts. Ordinaries as a requisite for deduction includes appropriateness. Question is that bid rigging money can be deductible. Korean Supreme Court says illegal expenditure can't be deductible, if it is against social order very strongly. The meaning of "against social order very strongly" is not obvious still now. In Japan also bid rigging money as a kind of illegal expenditure isn't deductible. In Korea and Japan, the conclusion on the taxation of bid rigging money case is same, but the reason is different. A bid rigging money is treated as a case which is against social order very strongly in Korea. A bid rigging money, meanwhile, is treated as 'rewards' in according to the tax law which provides rewards isn't deductible. A legal basis of taxation and deduction must be clear, considering of taxation policy and no taxation without representation. It however is not clear in korean case. Improvement is needed in the near future. A legal and practical logic in Japan can be helpful to have academic and practical significance in that time.