- 學位論文
稅捐處罰之界限－以遺產及贈與稅法第45條案例為中心
Boundary Of The Tax Punishment - Base On The Case For Article 45 Of The Estate And Gift Tax Act As The Center
摘要
對於違反稅捐義務而給予制裁，此謂「稅捐處罰」，依構成要件分為稅捐秩序罰與稅捐刑罰兩種。前者，依處罰目的及要件可分為行為罰與漏稅罰。行為罰係針對「行為犯」，亦即違反協力義務作為逃漏稅之前行為或準備行為，而未達逃漏稅之結果時，始足當之。故在行為罰中，應無未遂問題。漏稅罰係針對「結果犯」，其行為須有稅法所規定違反結果之發生，始為既遂，而得加以處罰。縱使行為人之行為已開始實施，惟仍尚未形成漏稅時，則尚未至既遂，亦不得加以處罰。 現行遺產及贈與稅法第45條（下稱遺贈稅法第45條）之規範，似有本質上（為協力義務）應為行為罰之構成要件，但卻有處以漏稅罰之疑慮，在裁罰構成要件上，係行為罰抑或漏稅罰？如遺贈稅法第45條規定之裁罰類型為漏稅罰，自應以納稅義務人有實際發生漏稅之事實，侵害國家稅捐債權為其要件，始得加以處罰。是以，「有漏稅事實」，應解為係「逾滯納期限仍未繳納應納稅額」。因此，「逾滯納期限未繳納應納稅額」，應論為「有漏稅事實」之構成要素，亦即有遺贈稅法第45條所描述之行為者，逾滯納期限未繳納應納稅額，方是「已發生漏稅之結果」，而構成漏稅之違章行為。易言之，遺贈稅法第45條之實害發生既遂時點，應解為係「逾滯納期限仍未繳納應納稅額」＝滯納期限（屆滿時）。按現行遺贈稅法第45條就納稅義務人違反應申報已申報之遺產而有漏報或短報情事之違章行為之規定，在未具有「有漏稅事實」之裁罰構成要件前提下，於申報期滿時，即予以認定並按所漏稅額處以2倍以下之罰鍰，似有修法之必要，俾使處罰構成要件之描述，完整清晰，而無疑義。 法學的任務在於獲取知識，促進對現行法律問題解決可能性的理解，其最終任務在於協助法的發展。法治國家對於違法者之處罰，應依法為之，乃現代民主法治國家之基本原則。然隨著時空轉變，稅捐處罰屢遭爭議。造成稽徵機關與納稅義務人之困擾，不僅有損行政效能，更有失公平正義，進而影響納稅義務人依法保障之權益。因此本文建議： 一、遺贈稅法第45條修法之必要 基於符合憲法第15條保障人民財產權之意旨、現代民主法治國家之基本原則及保護納稅義務人之權利等，故而建議於該條文中增加「致有漏稅事實」之文字。茲因以「有漏稅事實」為要件，係以納稅義務人有逃漏稅款者，始得據以追繳稅款及處罰。 二、納稅義務人對於不確定之法律狀態之應有思維 基於納稅義務人不得因不知法規而免除行政處罰責任，建議納稅義務人對於有疑義之法令規定於適用時，應多方徵得稽徵機關之看法及專業人士之意見，並以書面方式取得影響重大之徵詢意見，同時對於申報期限即將屆滿之案件者，應採取較保守之申報方式如期申報等思維。
並列摘要
Tax obligations for breach of sanctions, what we called "taxes punishment", according to the constituent elements are divided into taxes administrative penalty and taxes penalty order two. The former, according to the purpose of punishment and the behavior of the elements can be divided into behavioral punishment and punishment for tax evasion. The behavioral punishment is targeting at the "acts committed", which is violation of third party obligations as tax evasion acts or preparatory acts before, but below the tax evasion of the results. Therefore, the behavioral punishment, we should not attempt the problem. The punishment for tax evasion is targeting at the "the result of guilty", the acts must have the result of breaches of tax law occurred, beginning as an accomplished, derived to be punished. Even if the perpetrator's behavior has started, but tax evasion is still not yet formed, then not to consummated, nor be punished. Current Article 45 of the estate and gift tax act (hereinafter referred to as Article 45) of the specification, seems to be essentially (for third-party obligations) should be punished for the behavior of the constituent elements, but doubts have imposed the punishment for tax evasion, is in the constituent elements of the fine cut, behavioral punishment or punishment for tax evasion? If the provisions of Article 45 of the fine cut a fine type of tax evasion, Taxpayers should have the fact that the actual tax evasion that the elements of its claims against the state taxes, may only be punished. Therefore, "To have the fact that tax evasion", should be interpreted as "over the delinquent period has not yet paid overdue tax liability". Therefore, "over the delinquent period has not yet paid overdue tax liability" should be on as "To have the fact that tax evasion" of the elements, that have Article 45 described of the actors, over the delinquent period has not yet paid overdue tax liability, side is "the result of tax evasion has occurred", and constitutes evasion of illegal behavior. Other words, Article 45 of the real harm occurred consummated point in time, should be interpreted as "over the delinquent period has not yet paid overdue tax liability" = delinquent period (expiration). Bequest under the current Article 45 taxpayer should declare violation of the estate has been declared a short while omitting or violations reported violations of the provisions, without a "To have the fact that tax evasion", in the constituent elements of fine cut premise, in reporting expired, that is to be determined according to the leakage of tax imposed fines below 2 times, it seems necessary amending the law, thus giving punishment of the constituent elements of the description, complete and clear, no doubt. Law's mission is to obtain knowledge, to promote the existing law the possibility of understanding the problem to solve, with the ultimate task is to assist the development of the law. Rule of law for the punishment of offenders, should be according to whom, is a modern democratic state the basic principles of the rule of law. However, as time changes, the tax penalties have been more controversial. Caused by tax authority and taxpayer of the troubled, not only detrimental to administrative efficiency, more unfair justice, thereby affecting the law to protect the taxpayer's equity. Therefore, this article suggests: Article 45 of the necessary amending the law Based on the constitutionality of Article 15 of the intention to protect people's property rights, rule of law in modern democratic countries, the basic principles and the protection of taxpayer rights, and therefore proposed to add the clause "To have the fact that tax evasion" of the text. Whereas the "To have the fact that tax evasion", as the element, system of tax evasion by taxpayers who have, before it may, according to the recovery of taxes and penalties. Taxpayer of the uncertain legal status should be thinking I do not know based on the taxpayer shall not be relieved of regulatory responsibility of the administrative penalty is recommended for doubt of the taxpayer applicable laws and regulations, the tax collection authority should obtain the views of parties and professional advice, and made a major impact in writing the advice, while for the reporting period expires the case, should take a more conservative way of reporting timely reporting and other thinking.