因租稅核課處分而溢繳稅款之退稅請求權

曹馨方

doi:10.6840/cycu200901408

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因租稅核課處分而溢繳稅款之退稅請求權

The Right of Tax Refund from Tax Assessment for Overpaying the Tax Dues

曹馨方 , Masters　　Advisor：盛子龍　　

繁體中文 DOI： 10.6840/cycu200901408

退稅請求權；稅捐稽徵法第28條；形式存續力；既判力；溢繳稅款；租稅核課處分； tax assessment ； overpaying the tax Dues ； article 28 of the tax collection act ； the right of tax refund

Abstract │ Reference (70) │ Times Cited (2) │ Altmetrics

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Abstract
The inner text of the thesis is divided into five chapters.
Chapter 1 covers the introduction, which describes first the thesis’s core issues, research scope and objectives, research methodology, thesis framework and content summary, briefly explaining some of the main issues the study attempts to explore, and the scope of research.
Chapter 2 pertains to the rudimentary legal theories of tax refund rights, focusing on the discussion of the theoretic basis and critical elements of tax refund rights, and the legal premise for sustaining the tax refund rights, and also describes the basis by which a taxpayer is eligible to file for tax refund under the current law, by analyzing in-depth stipulations set forth under Article 28 of the Tax Collection Act, and some of the problems before and after the legislative amendment.
Chapter 3 pertains to the elimination of sustainability in norm by which tax assessment rules are made, by discussing the nature and validity of tax assessment rules, issues concerning exercising tax refund rights in the face of a sustainability in norm form justifying for tax assessment rules, and to discuss the litigation types related to tax assessment rules, and options in litigation when bringing remedies in the instance where a taxpayer’s petition for tax refund has not been approved.
Chapter 4 focuses on breakthroughs in ascertaining the res judicata, by discussing the confirmation of administrative litigation on tax assessment rules, the issue of how best to achieve breakthrough the confirmation of res judicata when exercising tax refund rights, and the probability, at such time, that a taxing authority is likely to modify or rescind the tax assessment rules.
Chapter 5 covers the recapitulation in the form of a conclusion that summarizes all previous chapters covered.  In the face of a sustainability in norm at the time tax assessment rules occur, a taxpayer may petition, in accordance with stipulations set forth under paragraph 2, Article 28 of the Tax Collection Act and that under Article 128 of the Administrative Procedure Act, with the taxing authority to withdraw administrative procedure or modify the previous tax assessment rules, provided that the objective shall be restricted and the eligibility eliminated when a taxpayer is found with deliberate or gross negligence in delays by failing to exert whose due diligence during the legally designated remedies period when filing for a tax rebate as per stipulations set forth under paragraph 2, Article 28 of the Tax Collection Act.  And once the tax assessment rules have been rejected and confirmed by through the administrative remedy, and under the circumstances where the previous tax assessment rules should be found illegal to justify for a withdrawal or modification, meeting also the critical criteria of a rehearing procedure as stipulated under Article 128 of the Administrative Procedure Act, a petition may be filed with the taxing authority to reopen the administrative procedure in a “second trial”, by which to withdraw or modify the previous tax assessment rules.  If the petition should be overruled by taxing authority, the same legal remedies means identical to that of the previous rules may still be sought, and in light that the premise of the two disputes are not identical, the res judicata of the previous judgment is thus being eliminated amid the reopening of the administrative procedure.

Reference ( 70 ) 〈TOP〉

蔡茂寅，《行政程序法實用》，2007年三版。
連結：
黃俊杰，《行政程序法》，2008年9月，二版。
連結：
黃茂榮，《法學方法與現代民法》，1993年增訂三版。
連結：
黃士洲，《稅務訴訟的舉證責任》，2002年8月初版。
連結：
江嘉琪，《行政契約關係與行政處分之容許性》，律師雜誌，第三０三期。
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Times Cited (2) 〈TOP〉

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