租稅法定原則與實質課稅原則之衝突與協調

正所謂財政為庶政之母，稅收則是支持國家最重要支柱，國家有租稅收入方可促進經濟發展、文化發展、環境保護等社會政策目的。我國憲法第19條規定：「人民有依法律納稅之義務」，為租稅法定原則之憲法上依據，國家機關向人民課稅，必須有法律依據，蓋納稅雖固為人民之義務，但屬對人民財產權之侵犯，所以，人民僅有依法納稅之義務，而非國家可以恣意向人民徵稅。租稅訴訟類型案件占我國目前行政法院所審理的行政爭訟類型中比重為絕大多數，自大法官會議釋字第420號解釋後，稅務爭訟事件中又以稅務機關採用實質課稅原則作為課稅依據占多數，因而稅務機關往往遭納稅義務人質疑有濫用之嫌。根據2013年賦稅人權指標調查顯示，民眾認為：一、稅務機關過度擴張行政權，任意曲解所得性質；二、訴願制度形式化，行政救濟如同虛設；三、法官對稅務法令理解，偏倚行政機關解釋，行政法院等同敗訴法院，分別占我國最需要改進的賦稅問題前三名。因此在租稅法定原則與實質課稅原則看似二背道而馳理念，同時融入稅捐稽徵法第12條之1的立法理由，卻又承擔紓解稅務案件訟源任務，如何有效化解衝突，充分調和，相輔相成，本文在第三章有專節加以探討。故本文先以租稅定義為基礎，再探討租稅法一般原則，作為實質課稅原則適用之理論基礎，並闡釋租稅法定原則與實質課稅原則定義、適用範圍及限制、衝突與適用順序，另輔以納稅人權利保護引進之必要性，最後以98年度最高行政法院及高等行政法院採實質課稅實例判決個案研究，期兼顧二原則相衡，減少稅捐訟源，以臻徵納雙邊雙贏。

關鍵字

租稅法定原則；實質課稅原則；訴願制度；行政救濟；納稅人權利保護

並列摘要

As the so-called finance is the mother of general government, taxation is the most important pillar to support the country. The country has tax revenue to promote economic development, cultural development, environmental protection and other social policy purposes. Article 19 of the Chinese Constitution stipulates: "The people are obliged to pay taxes in accordance with the law." This is the constitutional basis for the statutory principle of taxation. State agencies must have a legal basis for taxation of the people. Although tax payment is an obligation of the people, it is infringement of the people’s property rights, so the people have only the obligation to pay taxes according to law, not the state can arbitrarily levy taxes. At present, the types of administrative litigation cases accepted by the administrative courts in my country are tax litigation types. Since the interpretation of the Chief Justice Conference No. 420, the taxation litigation has adopted the principle of substantive taxation by the tax authorities The basis for taxation is the majority, and taxpayers often question the tax authorities for abuse. According to a large taxation human rights survey issued by the China Human Rights Association, the top three taxation issues that people believe most need to be improved in our country are: 1. The tax authority has too much administrative power and arbitrarily misrepresents the nature of income; 2. The appeal system is just looking good and administrative Relief is in vain; 3. Judges are not familiar with tax law, and administrative courts are equivalent to losing courts. Therefore, the statutory principle of taxation and the principle of substantive taxation seem to be contrary to the concept. At the same time, it incorporates the legislative reasons of Article 12-1 of the Tax Collection Law, but it also undertakes the task of alleviating the source of tax cases. How to effectively resolve conflicts and fully reconcile them. Complement each other, this article has a special section to discuss in Chapter 3. Therefore, this article first uses the definition of taxation as the basis, and then discusses the general principles of the taxation law as the theoretical basis for the application of the substantive taxation principles, and explains the definitions, scope and restrictions, conflicts and order of application of the legal principles of taxation and substantive taxation principles. Supplemented by the necessity of introducing taxpayers’ rights protection, finally, the Supreme Administrative Court and the High Administrative Court adopted a case study of actual taxation judgments in 1998. It is expected that the two principles should be balanced and the source of taxation can be reduced to create a win-win situation.