应税事实依据经济实质认定之稽征规则——基于台湾地区“税捐稽征法”第12条之1的研究

Collection Rules of Finding of Taxable Facts Based on Economic Substance:Study on Clause 12-1 of Tax Collection Law of Taiwan

台湾地区"税捐稽征法"第12条之1"课税构成要件之认定及明订举证之责任",将税捐稽征中已实行多年的实质课税原则条文化。当避税安排的法律形式与其经济实质不相符时,稽征机关认定应税事实应以实质经济事实关系及其所生实质经济利益之归属与享有为依据。由量能课税原则导出的实质课税原则,重经济实质甚于法律形式,是实现税捐正义的实质性手段,并不违背税收法定原则。稽征机关实质课税的自由裁量权理应谦抑行使,其以税捐负担的公平分配为原则,以不损害纳税人的合法权益为底限。稽征机关依据经济实质认定应税事实,应依法承担举证责任,纳税人依法应尽协力义务,否则,稽征机关有权推定应税事实。大陆《税收征管法》亦应增订实质课税原则。

Clause 12-1 of Tax Collection Law of Taiwan that finding of taxable composing factors and explicit formulation of burden of proof, substantive taxation principle which has executed in tax collection for many years is prescribed at first. When legal form of tax avoidance arrangement is not consistent with its economic substance, collection authority who finds taxable facts should be based on substantial economic factor relations and its foundation of attribution and possession of substantial economic interests. Substantive taxation principle originates in principle of taxing on capacity, emphasizes on economic substance more than legal form, and is substantial measure in impletion of tax justice, but not breaches tax principle of legality. Power of free appreciation of substantial taxation of tax collection should exert modest and restrained, whose principle is fair allocation of tax burden and lowest limitation as not to injure legal rights and interests of taxpayers. Collection authority finds taxable factors on the basis of economic substance, which should take on burden of proof of law. Taxpayer should fulfill legal cooperated obligation, otherwise collection authority has power to estimate taxable factors of taxpayers. Tax Collection Administration Law of China's Mainland should also prescribe substantial taxation principle.