세법상 임원개념 및 해석에 의한 확대적용가능성－ 법인세법 시행령 제43조와 44조를 중심으로 －

In general, the current Corporation Tax Law (CTL) permits as deductible expenses for tax purposes the entity's expenditures paid to its personnel if they are related to its business activities regardless of whether they are paid to a director or an employee. However, the current CTL distinguishes a director from an employee in the disfavor of the payment to a director. Thus, some expenditures related to a director must satisfy conditions prescribed in the laws or the ministerial decrees for deductible expenses. Among them the bonuses and severance payments to a director are most important because they are most frequently in conflict between tax payers and tax authorities. Accordingly, the exact meaning of a director and the range of its meaning should be provided. Article 43 and 44 of the present Presidential Decree of the CTL set forth deductible bonuses and severance payments to a director. But only Article 43 states the definition of a director. Thus, one issue is whether the definition of Article 43 on director can be applicable to Article 44. The prior Presidential Decree of the CTL had an article prescribing the definition of a director, which was applicable for both bonuses and severance payments of a director in common. However, today the tax authorities interpret and apply the meaning of a director in Article 44 as the same meaning as in Article 43 even though the former has no definition of a director. For this reason, whether this practice of the tax authorities can be acceptable is in dispute under the principle of ‘no taxation without representation’, in which important conditions for the tax assessment shall be prescribed in a statute law or in a ministerial decree according to delegation of the National Assembly. The Korean Supreme Court has interpreted and applied the tax law rigidly within the meaning of a word of the law. A majority of scholars also side with the Court's position. On the other hand, some scholars contend the majority while they are arguing that analogical or extended interpretation in the tax law can be permissible. The Supreme Court has been consistent with strict interpretation of the tax law seemingly, but in reality the Court, when equal protection or fair dealing is required, has applied the tax law flexibly, allowing teleological or, even analogical or extended interpretation. The analysis of the Court's rulings shows that this flexible interpretation may be tolerable when the result of the lenient application is reasonable considering all the facts and circumstances, and unless stability and predictability of the law are impaired. Under the said analysis of the Court's rulings, since the director in Article 44 of the Presidential Decree meets the conditions for flexible application of the tax law, the definition of the director in Article 43 may be acceptable as a standard for interpretation of the meaning of the director in Article 44. Although the interpretation of tax authorities can be permissible, the definition of the director in Article 44 should be stipulated in writing to secure stability and predictability of the law.