包作業稅額轉嫁權益之問題探討-以司法院釋字第688號解釋為中心

營業稅的性質為消費稅，本應以購買人為納稅義務人，但基於稅捐稽徵經濟之考量，而將其稅捐客體由「支出」改為「銷售」，並以銷售人為納稅義務人。因此，營業稅制便以間接稅規劃之。透過轉嫁的機制，使最後的消費者成為該稅捐之終極的負擔者，以使其課徵結果符合量能課稅的原則。然而，在多階段銷售的營業過程中，若營業人無法將銷項稅額轉嫁給買受人，就必須承受額外的營業稅負擔，而與營業稅係屬消費稅之立法意旨有違。司法院釋字第688號解釋的聲請人為一包作業營業人。由於依據加值型及非加值型營業稅法（以下簡稱營業稅法）中的「營業人開立銷售憑證時限表」之規定，包作業營業人應開立銷售憑證的時間為「依其工程合約所載每期應收價款時為限」，係早於收款前，相較於勞務承攬業係於收款時才須開立銷售憑證，前者顯然承擔了較為嚴竣的營業風險。一旦遇到帳款無法收回的情況時，稅額無法轉嫁，營業稅法也沒有提供業者任何補救之措施，不僅使包作業營業人居於較其他業別之營業人不平等之地位，且將使其財產權因而受損。本研究針對營業人賒銷後發生呆帳的情形，分別從會計準則、所得稅法以及營業稅法所適用的規範來分析，發現：包作業營業人在帳款無法回收時，由於其行業特性所致，在受到：(1)營業稅法的開立銷售憑證時限規定非採用現金基礎，以及(2)當營業人發生呆帳時，營業稅法與所得稅法均採取對營業人較為不利的規定，二個因素交互作用之下，輕微者影響公司績效，嚴重者可能影響公司存亡。因此，本研究以釋字第688號解釋為中心，除了對其違憲審查結果加以評析外，另亦針對財政部為配合該號解釋所公布的「包作業營業人申請退稅要點」、後續的行政法院實務見解，深入分析包作業營業人之稅額轉嫁權益是否有獲得較完善的保障。可惜分析結果顯示，包作業營業人於實務上所遇到的困境並未獲得改善。故本文最後提出修法的建議，期能落實營業稅之體系正義與量能課稅之目標。

關鍵字

包作業營業人；司法院釋字第688號解釋；營業人開立銷售憑證時限表；平等原則；間接稅；稅額轉嫁權益

並列摘要

The nature of the business tax is consumption tax, the purchaser should be the taxpayer originally. However, based on the economic considerations of tax collection, its tax object is changed from "expenditure" to "sale", and the seller becomes the taxpayer. Therefore, the business tax is designed to be an indirect tax model. Through the mechanism of transfer, the final consumer becomes the person who ultimately bears the tax, so that the taxation result is in line with the ability-to-pay principle. However, in the process of multi-stage sales, if the business cannot pass the output tax to the buyer, it must bear the additional business tax burden, and the legislative intent that business tax is a consumption tax will be violated. The petitioner of Judicial Yuan Interpretation No. 688 is a firm that belongs to package contracting industry. According to the provisions of ＂The timetable of business operator’s issuance of sales certificates＂under the Value-added and Non value-added Business Tax Act (hereinafter Business Tax Act), the regulation on the timeframe for package contracting businesses to issue sales certificate is “at the time a receivable payment is due in each period under the construction agreement”. And that time is earlier than the actual receipt of payment. Compared with the labor contracting industry, whose sales certificate is issued at the time of collection, the former obviously bears stricter business risks. In the event that the account cannot be successfully recovered, the tax cannot be transferred, and the Business Tax Act does not provide any remedy for the business operator, which not only places the package contracting business operators in a more unequal position than other business operators, but also impairs their property rights. The study analyzes the situation of bad debts of business operators from the applicable regulations of accounting standards, Income Tax Act and Business Tax Act, respectively. It is found that: when the accounts are not recoverable, due to its industry characteristics, the business operators of the package contracting business encounter the following two difficulities : (1) The time limit for issuing sales certificate in the Business Tax Act is not based on the cash basis, and (2) when a business operator has a bad debt, both the Business Tax Act and the Income Tax Act adopt regulations that are more unfavorable to the business operator. Under the interaction, the slightest affects the company's performance, and the serious one may affect the company's survival. Therefore, the study carefully examines the Judicial Yuan Interpretation No. 688. In addition to the analysis of the results of its constitutional review, it also conducts an in-depth analysis of the “Guidelines for the Application of Tax Refunds by the Package Contracting Business Operators” published by the Ministry of Finance to cope with the requirement of Interpretation No.688 and the the subsequent practical opinions of Administrative Court’s in order to understand whether the right of transferring business tax of package contracting business operators has been better protected. Unfortunately, the analysis shows that the practical difficulties encountered by the package contracting business operators have not been improved. Therefore, the thesis finally proposes the amendment of the relevant provisions of Business Tax Act and its sub-laws, and hopes to implement the system justice and ability-to-pay taxation objective of the business tax.