| 摘要註: |
「借名登記」為民法上無名契約，其概念、定義經過實務及學理討論，固已有一致見解，然因「借名登記」與信託、隱名合夥等契約有其類似性，導致稅捐機關及司法實務實際判斷產生混淆不清，難以正確妥適認事用法，引發人民對政府稅課不信任。再者，「借名登記」最大特徵為「名實不符」，而此「名實不符」的情形常導致實務及學說對當事人間權利義務關係爭論不一；反應到稅法上，常成為納稅義務人安排或規避稅負的手段，造成徵納雙方諸多課稅上爭議。有感於稅捐實務上，針對「借名登記」之案例，常一昧將其與逃漏稅捐掛勾，亦即認為私法上當事人以「借名登記」作為交易型態時，在稅法上即是為了逃漏稅捐，故進而需補稅外加處罰。鑑此，本文認為「借名登記」涉及財產處分之契約內容，為憲法第十五條財產權保障範圍，且稅法課稅基礎事實無法脫離私經濟事實，是擬從民法及稅務行政法角度，釐清「借名登記」在稅捐實務正確運用，輔以分析歸納法院判決，提出不同思考方向，期使稅捐核課更符合法制及兼顧人民經濟安排。本論文之架構共分為五章：第一章、說明本論文研究動機、範圍及方法。第二章、介紹借名登記基本概念，相關法律概念的區別，以作為後續探討「借名登記」課稅基礎。第三章、自憲法基本權理論及稅法基本原則探討借名登記課稅合憲性。第四章、「借名登記」因形式所有權人與實質所有權人不一，當有經濟上利得（所得）產生時，在稅課上首要面臨者即所得應歸屬何人之問題，而實務常以實質課稅原則將其歸屬實質所有權人，然實質課稅原則是否毫無界線，在遇到名實不符情形，逕適用此原則是否妥適？爰此均與「借名登記」悉悉相關，故於本章討論「借名登記」所得歸屬問題。另「借名登記」實務常與逃漏稅捐劃上等號，然「借名登記」真的為逃漏稅捐嗎？實有必要就逃漏稅捐相關概念加以闡述釐清，是於本章一併探討。同時就目前法院關於借名登記稅務訴訟的判決加以分析整理，在民法理論及稅捐實務兼顧下，提出不同的思考空間及方法。第五章、最後，本於私法自治、契約自由下所發展之無名契約，與稅法上逃漏稅捐非可劃上等號，或可比照相類似法律概念做為解決方法，為此建議借名登記契約在現行稅法無明文下，在其性質相類似處可類推信託目前課稅相關原理。 ‘Borrowing 0ther,s name for registration’ is a nameless contract in the civil law. Although its concept and definition,which have been discussed practically and theoretically, have a coherent view, because of its similarity to the contracts of trust and anonymous partnership，‘Borrowing 0ther,s name for registration’ leads to the bazodee from the tax collection authorities and judically practical judgement，which are unable to use the right method correctly. That causes the distrust of the people to the taxation. Furthermore, its biggest feature is the “inconsistency of name and reality”, which often results in the argument on the party’s right and obligation in the practical and the theory. While being reflected in the civil law, this feature often becomes the means of the tax payer to arrange or avoid the taxation and results in the taxation argument between both of the collector and the taxpayer.In responding to the taxation practice, the case of ‘Borrowing 0ther,s name for registration’ is linked up with tax-dodging obdurately; that is, from the point of the tax law, the party is thought to evade tax so he or she needs to pay an overdue tax and be punished while using ‘Borrowing 0ther,s name for registration’ as the transaction pattern. In view of this, this essay thinks that ‘Borrowing 0ther,s name for registration’, which gets involved in the contract content of the asset disposal, is in the property-guaranteed scope of Article 15, the constitution, and besides, the taxation fact can not depart from the fact of personal economy. I intend to make the correct application of the taxation manipulation clear from the angles of the civil law and the taxation law and bring up different ways of thinking with the additional help of the analysis and the induction of the judgement in the anticipation of making the taxation conform to the law more and taking the civilans’economic arrangement into consideration as well. The scheme of this thesis has five chapters.Chapter 1 Introduction of the Motivation, Range,and Methods of the Study. Chapter 2 Introduction of the Basic Concept of ‘Borrowing 0ther,s name for registration’ and the Discrimination of Related Law Concepts as the Follow-up Investigation of the taxation basics.Chapter 3 Exploration of the Constitutionality of ‘Borrowing 0ther,s name for registration’ from the Basic- Right Theory of the Constitution and the Basic Principles of the Tax .Chapter 4 Because the formal and the real owners in ‘Borrowing 0ther,s name for registration’ are different, the problem to face first in the taxation is who the profit belongs to while the economic benefit occurs. However, according to the “principle of taxation by law”it often belongs to the real owner in the practice. But is it true that the principles have no borderline and is it appropriate to apply to them directly when it comes to the condition of “inconsistency of name and reality”？All of the situations being related to ‘Borrowing 0ther,s name for registration’, the problem of the profit ownership will be discussed in this chapter. ‘Borrowing 0ther,s name for registration’ is often thought equated to tax evasion, but is it really the case? So it is necessary to elaborate and clarify the related concepts of tax-dodging, which will be discussed together. In the meanwhile,the current judgement on the ‘Borrowing 0ther,s name for registration’-related taxation litigation will be analysed and sorted. Under the consideration of the theory of the civil law and the taxation practice, different thinking space and ways will be also brought up.Chapter 5 Anonymous contracts developed under the autonomy of the private law and the contract freedom can not be equated to the the tax evasion but it may act as a solution just like a contrast of similar concept of law. Accordingly, it is suggested that the related taxation theory of trust can be quoted instead of‘Borrowing 0ther,s name for registration’contract because it has no current regulation of law. |