企業併購案件中的商譽攤銷與納稅人協力義務的界限

在無形資產的範圍中，商譽可以說是最難以掌握的類型。而在企業併購的過程之中，無論採取怎樣的併購方法，均可能發生交易雙方所同意之價格超出資產客觀價格的情形。這樣溢價雖然得以被列入商譽的範圍之內，但是對於從事交易的納稅義務人而言，能不能主張此際所發生之商譽比照其他無形資產，向來於各國稅法之中均構成難題。我國企業併購法第35條雖然規定：「公司進行併購而產生之商譽，得於十五年內平均攤銷」，但是因為這樣的價格要素經常為稅捐稽徵機關認為欠缺客觀、必要、且合理之性質，因而實務上少見攤銷成功之例。就此最高行政法院100年度12月份第一次庭長法官聯席會議決議，更進一步地鞏固了行政機關的見解。本文擬就商譽概念之形成，論述商譽攤銷問題究竟是否為單純的舉證責任問題。並試圖透過稅法上協力義務相關制度之思考，重建一套合理可操作的商譽攤銷認定模式，俾以維持前述企業併購法第35條的可操作性，而對於企業稅法制度的有效運作，有所助益。

關鍵字

稅法；營利事業所得稅；稅法與會計；商譽；無形資產；協力義務；舉證責任

並列摘要

Among the various types of intangible assets, goodwill may be considered as the one that is most difficult to master. However, in a merger and acquisition case, irrespective of the merger or acquisition method adopted, it may happen that the price agreed by the transaction parties exceeds the objective value of the acquired assets. Although such premium may be considered as part of the goodwill, for taxpayers who participates in the transaction, it has long been a tough question in tax laws of various countries whether the goodwill incurred there from may be subject to treatments similar to those applicable to other intangible assets. Although Article 35 of the Taiwan Enterprise Mergers and Acquisitions Act provides: ＂The goodwill created as a result of merger and acquisition by a company may be equally amortized within fifteen years.＂, such claim of a tax payer is seldom accepted by tax authorities, as the latter often consider the premium as not being objective, not necessary or not reasonable. The tax authorities' said position has even been further consolidated by the Resolution of the First Joint Meeting of Chief Judges and Judges of the Supreme Administrative Court in December 2011. This Article tends to clarify the formation of goodwill and then elaborate whether the goodwill amortization should be treated as a pure burden-of-proof issue, as suggested in the said Joint Meeting Resolution. This Article will further review the duty to act in concert requirements under the tax laws to reestablish a reasonable and manageable model for recognition of goodwill amortization and thus, to contribute to maintaining the manageability of Article 35 of the said Act, as well as to enforce effectively the operation of businesses tax laws.