公共設施保留地免徵及抵繳遺產及贈與稅問題之研究

The Study of Tax Deduction and Tax Cut in Estate Tax andGiven Tax of Reserved Lands for Public Facilities

張思敬(Szu-Ching Chang)

指導教授 ： 郭文忠 ； 徐學忍

元智大學/管理學院/管理研究所/碩士(2004年)

摘要

財政部租稅改革方案中，將稅基侵蝕、不當之租稅減免，列為改革中期主要之檢討對象。本論文係以公共設施保留地免徵與抵繳遺產及贈與稅之租稅優惠政策作為研究主軸，探討目前納稅義務人競相用公共設施保留地來進行節稅策略，有關之操作方式及所獲效益為何？是否由於違反社會公平而應取消？而在現行法令下，免稅與抵稅所引申出之相關問題為何?有無可行之解決方案等。
本研究係就國內法令之規定，蒐集國內相關文獻資料，並以來自會計師事務所租稅規劃之個案案例，進行描述及探索性研究。除探討公共設施保留地免稅與實物抵繳之立論依據、現況，同時就所引申出之各種問題，包括公共設施保留地租稅優惠之合理性、公共設施保留地與既成道路之差別待遇、公共設施保留地是否應依取得方式之不同有不同之計價方式、低價讓受公共設施保留地可能涉及之贈與問題、待納庫款與地方財政收支之關係等，透過法令與實務之分析結果，研擬可行之解決對策。
本研究結果發現，當前公共設施保留地之租稅優惠對政府與民眾而言，雙方均遭受損失，且成為經濟能力強者用之作為租稅規劃工具，有違社會公平原則。但因目前公共設施保留地徵收政策執行上之困難，基於憲法對人民財產權之保障及特別犧牲、平等原則，公共設施保留地之租稅優惠仍不宜輕廢。針對所引申出包含稅捐逃漏等之各種問題，提出以下建議：
一、修法廢除贈與稅實物抵繳之規定。
二、相關法律條文增訂既成道路與公共設施保留地有相同之租稅優惠， 地方政府並應給予同樣之補償。
三、遺贈稅法中明定依公共設保留地不同之取得方式及時間，分別按公告現值採不同之百分比例計算抵稅價值。
四、修法恢復公共設施保留地五年之徵收期限，逾期徵收政府應逐年增加補償之加成數，或依物價指數逐年調增。
五、公共設施保留地低價讓受涉及贈與之問題，財政部應即作成相關規定。
六、尊重公共設施保留地市場價格機制，並輔以相關配套補償及徵收政策。
七、撤銷不必要之公共設施保留地設置，並貫徹執行「都市計畫公共設施保留地問題處理方案」所提各項處理對策、方案與辦法。
八、中央按年編列特別預算，地方訂定徵收補償之財務計畫，儘速取得公共設施保留地。
九、將變現處分其他抵稅實物應撥解縣市政府、鄉鎮市公所之分成款項，沖抵公共設施保留地登記國有持分應有償撥用之價款。

關鍵字

遺產及贈與稅 ； 公共設施保留地 ； 租稅規劃

並列摘要

Under the Project of Taxes and Levies Rectification raised by Ministry of Finance, the erosion in tax base and unsuited tax cut were the main subjects to be discussed in the middle term. This study aimed at the preferential policy for tax deduction and tax cut in estate tax and given tax of reserved lands for public facilities, the focus was to discuss the operation modes as well as the effects of tax payers’ trying to make the best of reserved lands for public facilities to attain their ends of tax saving, and to discuss whether such preferential policy in taxes and levies should be repealed due to its violating the principle of justice. Besides, what are the concerning problems caused by tax deduction and tax cut under existent acts of law and if there is any available solution will be also discussed here.
This study adopted ways of description and exploration by collecting concerning domestic literature and information according to relative stipulation of statutes and referred to the tax planning cases from certified public accountants. Not excepting the theory and the existent circumstance of tax deduction and tax cut (by payment with practical objects) of reserved lands for public facilities, various problems caused by enforcement of such statutes, including but not limited to, the rationality of preferential taxes offered for reserved lands for public facilities, the differential treatment between reserved lands for public facilities and existent roads, if there should be different ways of charging for different acquirement of reserved lands for public facilities, the possible problems of given tax caused by selling reserved lands for public facilities at low prices, and the relation between payable treasury and local finance were also discussed. The focal point was to seek available solutions of such problems as per analysis of statues and study in concrete instances.
This study found that the enforcement of preferential policy in taxes and levies had brought damages to both government and people, and had violated the principle of justice due to such preference had become an unjustified tool of tax planning utilized by the rich. However, in view of difficulty in requisition of reserved lands for public facilities as well as the guarantee to people’s right of property and the spirit of specified sacrifice, principle of equality in existent constitution, the preferential taxes offered for reserved lands for public facilities remained not to be revoked indiscreetly. Several suggestions of solutions concerning to various problems caused as above were raised here as following:
1.To revise the acts or statues to repeal the stipulation of
tax cut for given tax by payment with practical objects.
2.To revise and draw up relative acts or statues to offer the
same preferential tax and compensation for existent roads by
the local government as that of reserved lands for public
facilities.
3.To calculate separately the amounts for tax cut by different
percentages of current value published according to
different ways and time points of acquisition of reserved
lands for public facilities through working out written
specifications in laws of estate tax and given tax..
4.To rectify the acts or statues to recover the stipulation of
a term of five years for requisition of reserved lands for
public facilities, and increase the percentage of
compensation or increase the amounts for compensation as per
index of price year by year for overdue requisition.
5.As to the possible problems of given tax caused by selling
reserved lands for public facilities at low prices, relative
statues should be worked out by Ministry of Finance.
6.To follow the mechanism of value in marketing about reserved
lands for public facilities under complements of relative
policy for requisition and concerning measures for compensation.
7.To abolish the establishment of unnecessary reserved lands
for public facilities, and to carry out the measures of
“the project for solutions of problems concerning reserved
lands for public facilities under the urban plan”.
8.To acquire the reserved lands for public facilities as soon
as possible by specifying a special budget in the central
government and drawing up a financial plan of compensation
for requisition in the local government.
9.To take the payable treasury to the hsien/municipal
governments or the hsiang/town/city administration offices
gained in separate lots from the disposal of other practical
objects for tax cut purpose to offset the payable amounts
for registering certificates of national holdings.

並列關鍵字

estate and given tax ； reserved lands for public facilities ； tax planning