손해배상금의 손금산입 여부에 관한 고찰 -대법원 2024. 9. 12. 선고 2021두35308 판결을 중심으로

Supreme Court decision in case 2021du35308 on September 12, 2024 (hereinafter referred to as ‘the decision’) addresses the issue of whether damages paid pursuant to a civil judgment can be included in deductible expenses. In this case, the issue was whether the damages could be considered as ‘expenses spent in violation of social order’ in relation to the ‘ordinary’ requirement of Article 19, Paragraph 2 of the Corporate Tax Act. The Supreme Court ruled that the compensation for damages could be included in the deductible expenses because the expenditure itself could not be considered to be against social order, and because other corporations conducting the same type of business as Bank A would likely have paid the compensation for damages in this case under the same circumstances. ① If we focus on the act of paying compensation by distinguishing between the ‘causal act’ and the ‘act of paying compensation’, it cannot be considered a violation of social order because it has the nature of compensating for damages in itself. ② In order to faithfully implement the principle of taxation by law and to ensure predictability and legal stability for taxpayers, it is necessary to carefully and strictly judge whether it constitutes a ‘cost of violating social order’. ③ In terms of comparative law, Article 19, Paragraph 2 of the Corporate Tax Act is modeled after Article 162 (a) of the Internal Revenue Code of the United States, and in the United States, compensatory payments and payment of a civil judgment or settlement are deductible. Considering these factors, the judgment of the decision that the compensation in this case does not constitute ‘costs paid in violation of social order’ is deemed reasonable. In addition, the validity of Article 33, Paragraph 1, Item 15 of the Income Tax Act, which states that “damages due to intent or gross negligence” are not included in necessary expenses, may be questioned based on the judgment of the decision. ① It seems difficult to find a reasonable reason to exclude damages from necessary expenses in light of the nature of damages as compensation for damages. ② The decision recognized the deductibility of damages in this case by determining that the damages cannot be considered as ‘costs of violating social order’, so even if the damages are due to intent or gross negligence, they can be included in deductible expenses. ③ It is also difficult to find a reasonable reason to differentiate between the inclusion of damages as a deductible expense under the Corporate Tax Act and as a necessary expense under the Income Tax Act, ④ In the case of Germany, the Income Tax Act and the Corporate Tax Act uniformly stipulate that payments made to fulfill obligations or instructions imposed in court proceedings solely for the purpose of compensating for damages can be included in necessary expenses or deductible expenses. ⑤ There is also a need to promote consistency and unity in the tax regulation system. In this regard, it is thought that a review is needed on whether to maintain Article 33, Paragraph 1, Item 15 of the Income Tax Act.