地方稅立法與解釋權限之研究——以監理效益為探討核心

The Study on the Local Tax Legislation and the Authority of the Tax Law- Focus on Supervisory Efficiency

憲法第一○七條第七款規定：「左列事項，由中央立法並執行之：七、國稅與省稅、縣稅之劃分。」是以，我國定有財政收支劃分法，又憲法第一○九條第一項第七款規定：「左列事項，由省立法並執行之，或交由縣執行之：七、省財政及省稅。」第一一○條第一項第六款規定：「左列事項，由縣立法並執行之：六、縣財政及縣稅。」然而我國地方稅部分卻仍由立法院制定法律加以稽徵，是否符合上開憲法規定？另我國向來見解係認為，財政部為主管全國稅捐之中央機關，是其對於相關稅法所發布之解釋函令當有拘束效力，又一般認為解釋函令性質上應屬行政規則，而依行政程序法第一五九條規定，所稱行政規則係指上級機關對下級機關之用，如此，是否中央與地方在稅法上必然當然是上級對於下級之關係。再者，有關地方稅法之解釋權限是否當然仍專屬於中央？亦屬應予釐清之議題，是拙文試以此為題而進行討論。

Article 107, Paragraph 7 of the Constitution states that the Central Government shall have the power of legislation and administration as described in No. 7 — The Demarcation of national, provincial and county revenues. Therefore, our country has the Act Governing the Allocation of Government Revenues and Expenditures. Also, Article 109, item 1, Paragraph 7 of the Constitution provides the provinces shall have the power of legislation and administration, but the provinces may delegate the power of administration to the county as described in No. 7 — Provincial finance and revenues. Article 110, item 1, Paragraph 6 of the Constitution states that the county shall have the power of legislation and administration: and No. 6. regulates the finance and revenues of the county. However, the local tax is still legislated by the Legislative Yuan. It raises the question of whether the act of legislation of tax is in accordance with the constitution. The common view is that the Ministry of Finance is in charge of the central government of tax and the interpretative Directive of MOF has a binding effect. Generally speaking, the interpretative Directive shall be an administrative rule. According to Article 159 of the Administrative Procedure Law, that “the administrative rules” is used by a superior authority to its lower units or by a superior officer to his subordinate officers. Therefore, it is worthy examining the relation between the upper central authorities and lower local authorities. Further, the article addresses the interpretation of the local tax law that is still exclusive to the central authorities.