순자산 감소를 수반하지 아니하는 손금 인정 여부 -대법원 2023. 10. 12. 선고 2023두45736 판결을 중심으로-

초록

The Supreme Court has not allowed the amount of difference in the exercise of stock options to be deducted as labor costs, etc., in the case of new stock options that issue shares of companies where executives and employees work, unlike settlement type stock option or the case of new stock options that issue share of the parent company. The recent Supreme Court ruling on October 12, 2023du45736 was the same. As the result of such kinds of sentences, article 19, No. 19-2 of the Enforcement Decree of the Corporate Tax Act was newly established to include differences as deductible expenses. As a result of that newly established decree, Article 19 of the Corporate Tax Act has transformed, transactions that do not reduce net assets into provisions can be regarded as deductible expenses. The Supreme Court has already recognized transaction that do not explicitly increase net assets as income(the Supreme Court's ruling on July 29, 2021, 2020du39655). In cases where it is necessary to include income or deductible expenses in matters that the Supreme Court determines that there is no increase or decrease in net assets, it should be reflected in Articles 11 or 19 of the Enforcement Decree of the Corporate Tax Act. In some cases, it is necessary to include income or deductible expenses that are not accompanied by an increase or decrease in net assets. Typically, the time when corporate tax should be imposed and the time when income should be disposed of are separated. However, in most cases where it is not, there will be many cases where an increase or decrease in net assets can be recognized in the process of interpreting transactions or legal interpretations accompanying economic substance, and such recognition prevents the addition of such provisions to Articles 11 or 19 of the Corporate Tax Act without use. This was also the case in this case. There was plenty of room to interpret the decrease in net assets equivalent to the difference in the exercise of stock options. In such a case, there was no need to establish Article 19, No. 2 of the Enforcement Decree of the Corporate Tax Act. As a result of the interpretation of transactions that are not based on economic substance, it is difficult to say that the Supreme Court's ruling, which made it possible to make profits and losses without increasing or decreasing net assets despite the words of Articles 15 and 19 of the Corporate Tax Act, made it possible to include profits and losses only when each scene needs to be included in Articles 11 and 19 of the Enforcement Decree of the Corporate Tax Act.

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