위법한 비용의 세법상 공제가능성-의약품 리베이트의 손금성을 중심으로-

The taxable income, generated from the business which the companies or individuals carry on, is calculated by subtracting the total deductible expenses from the total gross income. The corporate tax law specifically stipulates the amounts that correspond to gross income and deductible expenses, and also clearly specifies which amount does not correspond to gross income and deductible expenses. The Clause 1 of Article 19 of the Corporate Tax Act, which specifies the conditions for the recognition of loss amount, defines deductible expenses as the amount of losses generated by transactions which cause a deduction in the net assets of a corporation, excluding return of capital or financing, disposition of surplus funds, and other transactions as provided for in this Act. The Clause 2 of the same Act specifies the conditions for the loss amount, stipulating that “the losses shall be the losses or expenses generated or spent in connection with the business of a corporation which are generally accepted as normal or directly related to profit”. In relation to that, there is a controversy over whether illegal expenses cannot be recognized as deductible expenses. That is because the illegal expense is the expense incurred from the business and is directly connected to the profit. The Supreme Court of Korea ruled that the inclusion of the loss mount is accepted, unless there is special circumstances such as the disruption to the public policy as a result of the recognition of the illegal expense, thereby presenting the judgement criteria for the recognition of the loss amount. Basically, the Supreme Court of Korea left the room for the judgement that denies the expense in case that there is special circumstances such as the situation where such illegal expense is seriously against the public policy, although the Court recognized the expense affirmatively. The judgement criteria for the recognition of illegal expense has been raised as an issue amid the recent controversy over the different conclusions of the judgement by Seoul High Court of Justice in relation to the recognition of the rebated amount involved in the trade of medicine and medical supplies as the loss amount. With regards to the judgement criteria for the recognition of illegal expense as deductible expense, this study intends to present the criteria for determining whether the illegality of expense lies in the purpose or the means. The illegal expense cannot be considered as deductible expense if the illegality of expense lies in the purpose, while illegal expense will be deductible expense if the illegality of expense lies in the means. In relation to the recognition of illegal expense incurred from rebate amount involved in the trade of medicine and medical equipment, the supply of the medicine and medical equipment is not illegal, but the give and take of rebate amount is illegal. Thus, the illegality lies in the means called the rebate, not the medicine and medical equipment which are the object of the purpose. Therefore, in this case, illegal expense can be accepted as deductible expense.