| 摘要註: |
稅捐稽徵程序下，為實現租稅公平正義，對於稅捐事實之構成要件，欲達平等、正確之核定租稅，徵納雙方應各司其職，即徵方負有依法行政及職權調查義務，納方則負有依法納稅及協力義務。惟，在理論或實務操作面，不僅義務歸屬在租稅稽徵過程中頗有爭執，甚至影響後續退稅請求權問題。 將以國家賠償、請求返還不當得利及未履行協力義務失權效果三個案例，作為稅捐稽徵程序下徵納義務之開題，論述依法行政於租稅法上之展現，並分析徵納雙方於稅捐稽徵程序下，職權調查原則及稅務當事人協力義務兩者間之關聯性，免徵事實之發現是徵方之職權調查義務，抑或是納方之協力義務，探討其間義務應如何衡平。專章介紹公共設施保留地之徵、免土地增值稅修法過程、理由及其構成要件，以及如何從應課徵土地增值稅至免徵制度形成之歷史背景，進而討論現行實務上移轉公共設施保留地適用免徵土地增值稅規定時，其所面臨被突襲之危機問題。 稅捐稽徵法第28條退稅規定於2009年1月21日修正公布後，移轉公共設施保留地課徵土地增值稅申請退稅之問題激增，使得原已複雜之義務歸屬認定問題更形突顯。公共設施保留地被徵收前之移轉，現行實務操作上，無視明文應免徵土地增值稅之規定，僅稅務當事人未檢附土地使用分區證明文件，即一律課以土地增值稅。該癥結肇因乃在於徵納義務歸屬未明確，解決途徑應透過依法行政原則之檢驗，及檢視該免徵制度形成之立法目的符合免徵規定即無待申請當然發生免稅效果，並藉由稅捐稽徵程序應以職權調查為主，協力義務為輔且須有法律保留之要求，突破實務操作將免徵事實認定歸責於稅務當事人之協力義務，未履行即發生免徵失權效果所導致徵納義務失衡之窘境。藉此，期能釐清一直困擾著稽徵實務工作之徵納義務爭議，以及影響納稅義務人退稅請求權時效問題。 Under the tax collection procedure, both the tax collector and the taxpayer must fulfill their obligations in relation to the constitutive elements for a taxed fact, achieving an equitable and correct tax assessment, so as to ensure fairness and justice in taxation. In other words, the tax collector has the obligation of administration according to law and investigation according to its duties and powers, while the taxpayer has the obligations of paying tax according to law and providing assistance. However, both in theory and in practice, there is great dispute regarding the attribution of these obligations in the tax collection process, which affects the issue of subsequent rights of claim for tax refunds. This study begins with three case studies in relation to national compensation, a claim for the return of unjust enrichment, and a loss of claim by virtue of non-performance of obligation to assist, as the introduction to issues about obligations of tax collection and tax payment under the tax collection procedure. The author will discuss how administration by law is demonstrated in taxation law, and analyzes the connection between the principles governing the tax collector's obligation and powers to investigate on the one hand, and the taxpayer's obligation to assist on the other hand: Is the discovery of facts for a tax exemption a part of the tax collector's obligation and powers to investigate, or the taxpayer's obligation to assist, and how can a balance be achieved between these obligations? The study will also specifically describe the legislative amendment process for imposition and exemption from collection of the land value increment tax in respect of land reserved for public facilities, the grounds for these amendments, and the constitutive elements for the exemptions. From a historical background of the shift from collection to non-collection of land value increment tax, the study then moves on to discussing the crises now arising from the implementation of provisions governing exemptions from land value increment tax, when land reserved for public facilities are being transferred in practice. When Article 28 of the Tax Collection Act relating to tax refunds was amended and promulgated on January 21, 2009, a great number of problems arose from applications for refunds of land value increment tax imposed on transfers of land reserved for public facilities; this further highlighted the already-complex question of determining attribution of obligations. In current practice, land value increment tax would be imposed on a transfer of land reserved for public facilities prior to expropriation, if the taxpayer failed to submit documentation evidencing the land use zoning, with disregard to the fact that the law expressly provides for an exemption from land value increment tax. This problem arises because of uncertainty in the attribution of the tax collection and payment obligations. The solution lies in an examination of the principles governing administration by law, as well as the legislative purposes for formation of this tax exemption system; if the criteria for tax exemption were met, then a tax-free consequence should naturally follow without the need to lodge an application. In order to overcome the difficulties due to the imbalance between the obligations of the tax collector and taxpayer, the author proposes that the tax collection procedure should primarily be based on an obligation and power to investigate, and secondarily on an obligation to assist with legal reservations; this would then avoid the current situation in practice of attributing the determination of facts of tax exemption to the taxpayer's obligation to assist, and non-performance of this obligation results in loss of the claim to the tax exemption. It is hoped that this new direction will resolve the dispute regarding tax collection and payment that continuously troubles tax collection practice, and affects the limitation period issues in respect of a taxpayer's right to claim for tax refunds. |