論稅捐規避行為之立法與行為的類型化

The Enactment of Regulating Tax Avoidance Conducts and Their Categorization

稅捐規避行為之法律規範，可分成一般防杜條款與特別防杜條款。一般防杜條款，即為稅捐稽徵法第12條之1的規定，學說上稱此條文之規定為實質課稅原則。對於實質課稅原則之定性，應理解為稅捐法律解釋的方法，並在概念上與認定事實基準之核實課稅原則相互區分。在此一理解下，一般稅捐規避原則在實務適用上，必須找尋被納稅義務人所規避之具體法律規範，從目的解釋理解並確認其是否存在規範的漏洞，判斷納稅義務人有無濫用法律形成自由，以規避稅捐構成要件之該當，獲得稅捐利益，如此才能據以適用該條文規定，調整納稅義務人的稅負。實質課稅原則僅能調整納稅義務人之稅負並命其補稅，除非於例外情形下，否則不能作對於納稅義務人有利的適用，但實質課稅原則也不能用來作為處罰納稅義務人的法律依據。實務上，納稅義務人之一般規避行為，類型上可分為反覆來回型與逐步移轉型兩種。在稅捐規避行為之特別防杜條款中，最重要者，為關係企業間不合常規移轉訂價行為，與自然人之股東利用投資公司以進行隱藏性盈餘分配的情形。以上兩種型態均屬控制關係下的稅捐規避行為。然而，除了以上條款及反資本弱化規定以外，在我國稅捐實務立法上尚欠缺，受控制外國公司之條款與實質營運地的防杜規範，亟需早日立法通過，以取得稅捐機關調整納稅義務人在涉外課稅事件中之稅負適用的依據。

The legal framework which regulating tax avoidance conducts can be divided into two categories, the general preventive provision and the special preventive provision. The general preventive provision as stipulated under Article 12-1 of the Tax Collection Act of 2009 is deemed by legal academia as the principle of substance-over-form. The nature of the principle of substance-over-form shall be analyzed as an interpretative method of tax law and shall conceptually be distinguished from the principle of substantive taxation which collects tax basing on the fact of reality. From this perspective, the practical application of the general preventive provision shall begin at looking for the substantive provision which is avoided by the tax payer, interpreting it from its legislative goal, ascertaining whether there is any loophole exists, and determining whether the tax payer abuses the his freedom of compliance to avoid falling into the statutory elements of tax avoidance in order to gain his tax benefits. Only after fulfilling those inquiries can the tax authority adjust the tax burden of the tax payer in accordance with the specific tax provision. Unless under its exceptions, the principle of substance-over-form shall only be utilized as adjusting the tax burden of the tax payer to ask him to pay additional tax and shall not be utilized to reduce his tax burden. And, the principle of substance-over-form shall not be utilized as the legal basis to punish tax payers. In practice, the general tax avoidance conducts can be divided into two categories, the repeated back-and-forth category and the step-by-step transfer category. Under the special preventive provision which regulating tax avoidance conducts, the most important things are the non-arm’s length transfer pricing among affiliated enterprises and the utilization of investment companies by individual shareholders to hide the distribution of profits. The foregoing two categories are tax avoidance conducts under controlling relationships. However, in addition to the above mentioned provisions and those anti-thin capitalization provisions, In Taiwan there is practically no preventive provision to prevent foreign companies who are controlled by domestic tax payers from substantive operations and shall enact those provisions as soon as possible to acquire the legal basis of adjusting the tax burden on the taxation of foreign source incomes.