- 學位論文
租稅秩序罰之責任條件與歸屬
Contribution of Taxpayer’s Wilfulness and Negligence in the Case of Tax Administrative Penalty
摘要
租稅秩序罰之立法目的在於，確保納稅義務人及時且完全繳納稅捐。在行政罰法未施行前，因缺乏對於租稅秩序罰責任條件之規定，致使實務之判斷標準未盡一致，且與學理之觀點不同。在行政罰法施行後，行政罰法第七條規定對於租稅秩序罰之責任條件設有一般性規定。本文所探討之重點在於，納稅義務人違反租稅秩序罰之規定時，應如何解釋與適用行政罰法第七條之規定，予以認定納稅義務人之責任條件。 在我國實務上，若納稅義務人委託專業人員，例如記帳士、會計師或其他專業人員，申報或繳納稅捐時如有違法，不論受託人是否為納稅義務人之利益，縱使其侵佔稅款或偽造繳納憑證，一概認定納稅義務人具有過失存在。法院向來認為，納稅義務人為法定義務人，專業人員僅係受託為其辦理申報營業稅事宜，必須以納稅義務人名義，向稅捐稽徵機關提出申報書，足見就該向稅捐稽徵機關提出申報之行為而言，該專業人員係基於代理人之地位，則依民法第二二四條之法理，納稅義務人應就代理其報稅之記帳會計人員之故意過失負同一責任，而不能諉過於代理人。然而，關於納稅義務人責任條件之認定，則應回歸行政罰法第七條之規定，較為妥適。 由於組織體無如自然人般具有心理狀態，又其必須藉由自然人代其為一定行為，故組織體之違法行為實際上是立法者所擬制之人工製品，而非如自然人之違法行為實質存在於社會。因此，組織體責任條件之認定將涉及組織體內部之運作情形，亦即組織體與其內部之有代表權人、員工相互間之關聯。此一問題涉及行政罰法中兩罰制規定之解釋與適用，故有先予以釐清之必要。納稅義務人為組織體時，其責任條件應如何認定的問題。本文擬參酌德國與美國關於兩罰制之歷史沿革及其理論發展，並觀察前述外國法制在兩罰制之立法模式下，如何處理組織體之責任條件應如何認定的問題。最末，以前述研究成果，指出現行實務見解違誤之處並提出本文看法。
並列摘要
The present study aimed to discuss how Article 7 of the Administrative Penalty Act can be applied to explaining the taxpayer’s willfulness and negligence when the taxpayer violates the regulation of Tax Administrative Penalty. It goes without saying that the taxpayer should not be held liable to punishment if he/she did not act intentionally or negligently. The purpose of legislation in the prescribed Tax Administrative Penalty was to ensure taxpayers filing their tax returns in time and thus tax liability will be ascertained. However, there was short of a unified and applicable code to exercise the Tax Administrative Penalty in practice, hence this may result in divergent viewpoints by dissimilar standards and ruling procedures. In practice, the courts have discussed that taxpayer will be accused of failure to filing a tax return even if the negligence was caused by accountant or attorney who is only the agent of the taxpayer. From the viewpoint of the court, the taxpayer can be considered as statutory obligor, the experts such as bookkeeper, accountant was only authorized to deal with filing the sales tax. Therefore, those experts can only represent as the taxpayer’s agent instead of taxpayer themselves. According to Article 224 of the civil code, the taxpayers, themselves, should be in charge of their agents’ violation of law. After the Administrative Penalty Act was promulgated, the rules of willfulness and negligence in tax administrative penalty were defined in Article 7 of the Administrative Penalty Act. It suggested that where an act violates a statutory duty and is thus subject to the administrative penalty even though intent may not necessarily be an essential condition for establishing the offender's liability, negligence would be one such condition. In such case, it would be much more appropriate to apply Paragraph 2, Article 7 of the Administrative Penalty Act and other related developments of its history to deciding whether taxpayer is culpable. According to Article 7 of the Administrative Penalty Act, the willfulness and negligence of organization should be closely connected to the organization’s internal operation which is the relationship between organization and high level management and employees. The issue seems to be closely related to the explanations and application of Paragraph 2, Article 7 and Article 15 of Administrative Penalty Act. Therefore, it is necessary to clarify the taxpayers’ willfulness and negligence when the taxpayers are the organizations. The current study, therefore, intended to review the course of change and development of Paragraph 2, Article 7 and Article 15 of Administrative Penalty Act and its theoretical backgrounds in German and United States in order to understand how willfulness and negligence of the organization was discussed under the legislation mode of Paragraph 2, Article 7 and Article 15 of Administrative Penalty Act.