| 摘要註: |
信託乃法律行為，亦是經濟行為，信託之創設、變更與消滅，在在均涉及財產權之得喪與變動，並與信託法律關係人間之信託權利與收益的發生、消長與歸屬息息相關，亦常常產生課稅問題。信託法與稅法，同屬經濟法領域，前者為受託人代他人管理財產之法律規範，首重效率與安全；而後者為政府獲取財政收入與人民租稅負擔之重要依據，故著重公平，除此之外，課稅亦密切影響人民經濟生活與理財規劃，故應兼顧效率，即避免對經濟體系之運作造成阻礙，以及干擾資源之合理配置。換言之，信託課稅法制應盡可能兼顧效率與公平，惟兩者在實際運作時，經常會出現互相衝突與互為消長之情形，難以兩頭兼顧。因此，如何制定一個公平與效率的信託課稅法制，乃是吾人努力之目標。有關信託課稅的基礎理論，依國內外學說與實務通說，主要有二，一為信託導管理論，一為信託實體理論，兩者之最大差異，乃在於前者認為信託財產僅是信託的導管，實際上應由享受信託利益之受益人作為課稅主體，而直接負納稅義務，而非由信託財產作為課稅主體來負納稅義務；而後者，由於信託財產具主體性，故將信託財產認作係一具納稅能力之主體，而以之負擔納稅義務。在此一前提下，前者乃採追求公平之實質課稅原則與量能課稅原則；後者則偏重追求效率，而以稽徵便利原則與稽徵經濟原則作為課稅指導原則。兩種信託課稅理論，何者為優？難有定論，恐必須視稅制設計之政策目標與立法目的而定。在實務上，不論是英美法系或大陸法系國家之信託制度普遍都認為信託財產具有獨立性與主體性，且均為學說所肯認，因此，由信託行為所生之權利義務在私法名義上雖都以受託人為法律主體，惟實質上其權利義務最終都仍歸屬於信託財產承受或負擔，與受託人之固有財產無涉；受託人名義下之信託財產與固有財產，所呈現承載兩種截然不同權利義務的財產權屬性，由此可略見一斑。此種所有權概念是否能與我國民法之所有權本質相容，非無疑問。由於存在上述問題，故本文試擬檢討信託財產可否自外於受託人而以法人之型態成立？其法理基礎為何？又其與英美傳統信託概念是否契合？實務上之可行性為何？如若不可行，其原因何在？若依循以上檢討所定性之所有權模式，則理想之信託稅制應如何建構？由於以上種種問題所在均涉及納稅義務的真正歸屬與確立，以及稅負之是否公平合理，應如何解決與釋疑。 Trust is both a legal and economic action. A trust is usually created, modified, and terminated in relation to the acquisition, loss, and alteration of property rights. It also has much to do with the occurrence, increase, decrease and attribution of profits and trust rights between the legal stakeholders of the trust; thus, questions about taxation arise accordingly. Trust law and tax law are both within the domain of economic law. The former is about legal provisions on trustees managing the wealth of others, for which efficiency and safety are the priority. The latter provides an important foundation to regulate how the government should acquire revenue and what appropriate tax burden the citizens should bear. In this case, equity has a higher priority. Because tax levy is closely related to the citizens' economic activities and financial planning, efficiency is an important consideration here, i.e., how to prevent tax levy from hindering the operation of economy or from interfering the reasonable allocation of resources. In other words, laws for taxation on trust must be efficient and just. Nevertheless, conflict of interest exists between the two principles and that makes it a challenging task to strike a balance. Therefore, how to establish a just and efficient legal system for taxation on trust is a goal to be pursued.Regarding theories of taxation on trust, in both domestic and foreign studies as well as legal practices, there are two schools of thought. One is trust conduit theory, and the other is trust entity theory. Trust conduit theory considers that property under trust is only a conduit for trust, and not a entity in itself. The beneficiary of the trust therefore should be the subject of taxation. In contrast, trust entity theory argues that property under trust is an entity and thus subjected to taxation. According to this premise, the former adopts the substantive taxation principle and the ability-to-pay principle to pursue equality, while the latter puts more emphasis on efficiency and takes convenience and economic principles as the guidelines for taxation. It is hard to say which one is better. Assessments of both theories must be judged on the basis of policy objectives and legislative purpose of the taxation system. In practice, both the Anglo-American and Continental legal systems consider property under trust as an independent entity, and this point has been well acknowledged by legal theories and related studies. Even though rights and obligations derived from trust activities take trustees as the legal subject nominally in private law, rights and obligation substantially, however, are ultimately born by trust property and have nothing to do with the trustees’ inherent property. As a result, trust property and the inherent property under the name of trustees represent and bear two completely different types of property attributes that concern the allocation of rights and obligations. It is hence questionable whether this kind of ownership concept is compatible with that of which is defined by the civil law of Taiwan. Starting out from this question, this study proposes to examine how it is possible to implement the trust of corporate entity in the Taiwanese context? What are the legal grounds? Is this view compatible with the concept of trust in the Anglo-American legal traditions? And most crucially how is it feasible in practices? If not, what are the reasons? How can we construct an ideal taxation system for trust based on the ownership model discussed above? Since these questions are not only associated with the actual attribution and confirmation of tax obligation but also related to the equality of taxation, an attempt to explain and resolve them is most critical. |