| 摘要: | 吾人深信良好的租稅制度有助於公共利益之增進，使現行民主政治得以落實，憲法第十九條規定，人民有依法律納稅之義務，係指國家課人民以繳納稅捐之義務時，應就租稅主體、租稅客體、稅基、稅率、納稅方法、納稅期間等租稅構成要件及租稅稽徵程序，以法律定之，否則即增加人民之租稅法上負擔，有違「租稅法律主義」。但由於目前租稅法律本身規定有欠細密、租稅事務具有高度專業技術性質、稽徵程序複雜性與因修法程序繁瑣不及反應社會經濟繁雜多變情形，實務上稽徵機關為避免對於租稅法律或命令之抽象性獨自判斷而使稅務行政陷於雜亂無章、確保稅捐法規的統一公平的執行、減輕稅務人員以及稅務代理人的適用法令遭遇疑義之困難與工作負擔，並使稅捐稽徵機關的行為具有預測可能性進而提高稅捐法規的安定性，解釋函令有存在的必要。惟法律授權訂定之命令，如涉及限制人民之自由權利時，不得超越法律授權之外，逕行訂定裁罰性之行政處分條款，否則即違反「法律安定性」原則，因為人民此時已經無法預測其財產權會受到何種範圍的侵犯。 有關土地交易所得部分， 國父遺教對於土地增值有漲價歸公等特殊規定，因此乃對土地增值單獨課徵土地增值稅，免徵所得稅，換言之土地增值稅乃成為所得稅之分離課稅。然現行實務營利事業出售土地，雖免課營利事業所得稅，但其出售土地之交易所得依現行財政部之函釋規定其盈餘分配予股東時，屬股東之營利所得，應由股東合併各類所得申報繳納綜合所得稅，歸課股東獲配年度之綜合所得稅。 租稅法是包含法律、會計與經濟的學科，租稅的課徵亦是三者之結合。吾人在解釋相關租稅法律、規章及釋函令時，應首先依其規範事項內容，加以分析其法律性質，進而探尋制定之泉源及其界限，且更應瞭解立法權對此等解釋函令之監督範圍，因此，營利事業出售土地之交易所得，究屬營利所得應由股東合併各類所得申報繳納綜合所得稅，或屬稅後所得，或屬免稅所得？若僅由法律、會計或經濟任何單一角度探究此一課稅問題，都可能有以偏概全之憾。 本研究欲透過實例及個案探討，以期達到法律、會計與經濟觀點的整合，來架構、分析以及解釋有關營利事業出售土地課稅問題。 It is believed that a good taxation system improves public interest and helps achieve modern democracy. Article 19 in the Constitution states that the citizens are obligated to pay taxes, and this means that when the national collects taxes from its people, the components and procedures of taxation, including taxable entity, taxable object, tax base, tax rates, and the means and period of tax-paying shall be specified by law; otherwise, the people will be over-burdened with taxes, violating the “Principle of Statutory Taxpaying”. However, the current taxation law itself is flawed. Taxation is a highly dedicated and technical domain, taxation procedures are very complicated, and the legislation process is too slow to respond to the social-economic changes. In fact, it is necessary for taxation agencies to provide an interpretive release in order to avoid being arbitrary when dealing with the abstract tax law and result in unorganized administration, ensure fair implementation of tax laws, reduce the burden on taxation personnel and agents when the legal doctrines they use are being questioned, and give a sense of predictability in the taxation behavior that in turn increases security in tax laws. Nonetheless, any action of taxation must not exceed its legal authorization, such as when it is in violation of people’s freedom and rights, or having arbitrary, punitive doctrines, as this would violate the principle of “legal stability” and the public can no longer know what kind of violations they properties will be exposed to. As for the profit from land transactions, Dr. Sun Yat-sen, the founding father of the Republic of China, specifically stated that the profit from a land due to its increased value shall be given to the government, and this is why the Land Value Increment Tax replaces the Income Tax when dealing with increased land value. In other words, the Land Value Increment Tax is separated from the Income Tax. However, although today’s profit-seeking enterprises are exempted from business income tax for profits generated from land transactions, a shareholder of such a enterprise who receives the profit from the land transaction, as required by the Ministry of Finance, is treated having business income and needs to pay taxes accordingly in the same tax year the land transaction took place. Tax law is a subject covering law, accounting, and economics, and taxation is also a combination of the three. When interpreting tax law, regulations, and interpretive release, we must first analyze their legal nature based on their content, understand their origin and definitions, and also understand the jurisdiction of legislation on the interpretive releases. A question, therefore, is whether a profit-seeking enterprise’s profit generated through land transactions treated as shareholders’ income and filed in their income tax report, as after-tax income, or as tax-free income? We will not be able to get the whole picture if this issue is only looked at from a perspective of law, accounting, or economics. In this study, therefore, actual cases are examined in order for us to combine the legal, accounting, and economic perspectives to construct, analyze, and interpret the issue of taxation on profit-seeking enterprises' land transactions. |
