論不動產借名登記之課稅問題

稅捐係國家對人民私經濟活動結果之課徵，通常私法上所形成之事實關係，會被稅法尊重並承接為課稅要件之前提，但私法對稅法僅有評價上之先序性，而沒有優先性，若人民濫用私法自治、契約自由藉以規避稅捐之負擔，違反量能平等負擔原則時，在稅法上自得加以調整，不受民法之拘束。借名登記乃我國不動產交易實務上常見之型態，在私法及稅法上具有相當之爭議，其在私法上之評價結果，在稅法上應屬逃漏稅捐或是稅捐規避，值得探討。稅捐逃漏與稅捐規避最主要之區別，在於納稅義務人是否違反真實義務。倘納稅義務人依稅法之規定，並無將特定課稅事實揭露與稽徵機關知悉之義務，則納稅義務人即不因未揭露該課稅事實而構成真實義務之違反。借名登記契約依民事裁判實務及學說之多數見解，在私法上係真實（非通謀虛偽意思表示）、有效（未違反公序良俗）之契約。在私法上，不動產所有權之歸屬固然係透過公示登記資料認定之。然在借名登記之情況，因形式所有權人與實質所有權人不同，而該不動產所生之經濟利益係由借名人取得，從而在稅法上，應按實質課稅原則，認為借名人方為不動產相關所得歸屬之人。準此，借名登記在稅法上應如何評價，其關鍵在於借名人借用他人名義取得之所得，究竟有無申報所得之義務？依德國立法例與學說見解，納稅義務人如隱匿其迂迴、不合常規之交易安排，使稽徵機關因不能認識到稅捐規避行為之存在而無法發動其稅捐調整權時，亦屬真實義務之違反，從而另行構成稅捐逃漏。本文認為參考納稅者權利保護法第7條第8項規定：「第三項情形（按：指稅捐規避），主管機關不得另課予逃漏稅捐之處罰。但納稅者於申報或調查時，對重要事項隱匿或為虛偽不實陳述或提供不正確資料，致使稅捐稽徵機關短漏核定稅捐者，不在此限。」借名登記屬於課稅重要事實（影響所得應歸屬之人以及應納稅額之多寡），故納稅義務人負有誠實告知義務，當納稅義務人未為告知時，即可認為納稅義務人違反真實義務，而屬逃漏稅捐行為。

關鍵字

實質課稅；稅捐規避；逃漏稅捐；借名登記；真實義務

並列摘要

Tax is levied on the result of taxpayers’ private economic activities. In general, the relationships formed under the civil law will be respected by the tax law and become the premise of taxation. However, the civil law is not superior to the tax law, but is a starting point to evaluate tax implications. In the case where a taxpayer abuses the self-rule of private law and freedom of contract to avoid tax, and therefore violates the ability-to-pay principle, adjustments could be made to the tax consequences and not be bounded by the private law. In Taiwan, under commercial practice, it is common to borrow others’ name for real estate registration, and disputes have arisen from both civil law and tax law perspective. It is worth studying whether the civil law effect of borrowing others’ name for real estate registration would have any impact on the determination of tax avoidance and tax evasion under the tax law. The main difference between tax avoidance and tax evasion is whether the taxpayer has violated the obligation of being truthful. If under the tax law, a taxpayer is not obligated to reveal certain fact to the tax authority, the taxpayer will not violate the obligation of being truthful for not revealing such fact to the tax authority. Under the civil law practice and the majority of academic opinions, a contract of borrowing other’s name is real (not a fictitious expression of intent in collusion with others) and valid (does not violate public order or good morals) under the civil law. From civil law perspective, the attribution of a real estate should be determined based on public registration information. Nevertheless, in the case of borrowing other’s name for real estate registration, as the legal owner and the economic owner of the real estate is different, and the economic benefits derived from the real estate are obtained by the name borrower, from tax law perspective, the income associated with the real estate should be attributed to the name borrower pursuant to the principle of substance-over-form. As such, the key to evaluate the act of borrowing other’s name for real estate registration from tax law perspective is whether the name borrower is obligated to report the income related to the real estate obtained under other’s name as its own income? In reference to the German law and academic opinions, if a taxpayer hides its zigzag and unconventional trading arrangements, and the tax authority cannot make necessary tax adjustments due to not being aware of such arrangements, the taxpayer has violated the obligation of being truthful and constitutes tax evasion. From Article 7, Paragraph 8 of the Taxpayer Rights Protection Act, “In the situation stated in Paragraph 3 (i.e. tax avoidance), the tax authority cannot impose tax penalties for tax evasion. However, this does not apply if the taxpayer hides prominent facts, makes fictitious statements, or provides false information when filing tax return or during tax investigation, and caused the tax authority not being able to make tax assessment correctly.” A contract of borrowing other’s name should be a prominent fact (as it could affect the person liable to pay tax and the amount of tax payable) and the taxpayer is obligated to reveal such fact to the tax authority. If the taxpayer fails to do so, it has violated the obligation of being truthful and could constitute tax evasion.