- 學位論文
所得稅推計課稅及稅務爭訟之研究
A Study Of Income Tax Estimation And Tax Litigation
摘要
推計課稅係指稽徵機關在為課稅處分（尤其是所得稅的核定）之際，不根據直接資料，而使用各種的間接資料，認定課稅要件事實（所得額）的方法。惟稽徵之核課上如有課徵不能或稽徵費用過鉅時，為使稽徵程序能順利進行及維護國庫收入，倘稽徵機關已竭盡調查之能事，亦無法調查課稅基礎時，是以為避免國家租稅權無法有效實現，自應容許推計課稅以補其不足。 推計課稅並未免除稽徵機關之調查義務，僅於當事人未盡協力義務而核實課稅有不能或困難時，始得依推計方法減輕稽徵機關之調查負擔。故推計課稅之運用，除稅法特別規定外，應需具備 1.納稅義務人違反協力義務：司法院釋字218號解釋，即指明課稅基礎之推計須以協力義務違反為前提。而所得稅法第83條更明文規定，納稅義務人應提示而未提示各種證明所得額之帳簿文據者，稽徵機關始得使用查得資料或同業利潤標準。 2.課稅事實調查屬不可能或無期待可能性：稽徵機關之調查義務，原則上並非於協力義務開始即歸於消滅，而是需稽徵機關得採行之調查方法均無法達成核課稅捐之目的時或不具期待可能性時，始可免除。 本文之研究，僅限於推計課稅爭議頗多之營利事業所得稅為範圍，特別係針對所得稅法第83條規定，納稅義務人未盡調查之協力義務，而依查得資料或同業利潤標準核定所得額之案件為重點加以深入探討。另本文採取以會計為主，法律為輔，兼採會計圖示以法律條文及會計原則來加以說明，並透過學說論述及實務上案例，探究推計課稅之意涵，再循文獻探討、歸納法及比較法，蒐集相關法規及解釋函令等資料，加以彙總整理、分析比較與探討，以作為提出建議之理論基礎，進而探討推計課稅本研究主題值得關注之問題所在，並提供日後修法建議參考。
並列摘要
Tax estimation is a method adopted by the tax administration to establish the factual elements relating to tax obligations (i.e. the taxable income) when imposing tax penalties (especially during the tax certification stage), based on circumstantial evidence instead of direct information. If the tax administration has exhausted its investigation efforts but remains unable to determine the taxation base, or if the tax calculation proves to be impossible or is too costly to conduct, then the estimation approach can be adopted as an alternative in order to facilitate the taxation process, thereby securing treasury revenues and the nation’s right to tax. Tax estimation does not relieve the tax administration’s duty to perform an investigation, and is applicable only when the taxpayer has not fully co-operated in reporting tax duties, thereby rendering taxation difficult or even impossible. Under such circumstances, the tax administration may adopt the estimation approach to lessen its investigation burden. Therefore the tax estimation approach must satisfy the following criteria, unless otherwise permitted by tax laws: 1.The taxpayer has violated the duties to co-operate: the Judicial Yuan has made clear in Interpretation No. Shih-218 that the taxation base can be estimated only if the taxpayer has violated the duties to co-operate. Section 83 of the Income Tax Law further specifies that the tax administration may calculate tax based on the information it has gathered or that is based on the profitability of industry peers, only if the taxpayer has not presented the necessary accounts or documents to support the reported taxable income. 2.When it becomes impossible or unfeasible to conduct an investigation on taxable facts: the tax administration’s obligations to investigate are not replaced by the taxpayer’s duties to co-operate; the tax administration can be relieved of its obligations to investigate only if all available investigation methods fail to determine the appropriate amount of taxes, or when no possibility of investigation is expected. The scope of this study is focused only on the income taxes of profit-seeking enterprises, where the tax estimation approach has given rise to many disputes, especially towards taxpayers’ failures in exercising duties to co-operate, as required in Section 83 of the Income Tax Law, and for which the tax administration has determined their taxable income based on the information it has gathered or based on the profitability of industry peers. This study utilizes accounting principles as the primary approach, laws as the secondary approach, and accounting diagrams as support to explain this subject. The study also incorporates a literature review, inductive reasoning, and comparisons to discuss the implications of tax estimation through both theoretical and practical perspectives. The relevant laws and interpretations thereof are organized, analyzed, compared, and discussed to provide the theoretical basis of the proposed recommendations. Furthermore, the study discusses the most prevalent issues pertaining to tax estimation, which may serve as useful references for future regulatory amendments.