論依法課稅原則之解釋方法──對歷年來司法院大法官解釋的觀察（下）

The Method of Interpretation of the Principle of Taxation by Law: A Review of the Judicial Interpretations of the Judicial Yuan (2)

依實務看法，依法課稅原則之「法」，指制定法與法規命令。然此與國際及我國釋憲實務並不一，應斟酌採用國會保留原則。依法課稅與平等原則有關，實務已發展出「不當歧視禁止」，但量能課稅與競爭中立原則仍未有解釋。依法課稅與比例原則亦相關，但目前僅見處罰相當性，扼死稅禁止與半數所得課稅，仍有欠缺。依法課稅涉基本權，為財產權、工作權、生存權、人身行動自由，居住遷徙自由、訴願與訴訟權。依法課稅原則係利用解釋方法，實質課稅原則亦屬目的解釋，但與核實課稅有別。在依法課稅下，稅基應由國會制訂，惟不排斥行政機關訂定事實認定行政規則，前者指劃定稅捐主客體範圍與稅額計算，後者則指如何用證據或納稅人未提證據時要如何認定事實。

According to the views expressed by the Judicial Yuan, the term “law” under the principle of taxation by law refers to the statutory laws enacted by the Legislative Yuan as well as the regulations prom-ulgated by the administrative agencies under statutory authorization; however, such views are inconsistent to the fundamental value under the theory of significance in light of the international legislative trend and Taiwan’s long practice of constitutional interpretations. Therefore, it is necessary to look for a proper opportunity to shift to the principle of strict congressional reservation. The principle of taxation by law involves people’s fundamental rights, such as people’s property rights, right to work, right to live, and right of freedom in general and peo-ple’s right of free movement and right to institute administrative ap-peals and right to institute legal proceedings under individual tax laws in specific. The application of the principle of taxation by law requires the utilization of various methods of interpretation. Among all, the substance-over-form doctrine belongs to the interpretation based on legislative purpose but in concept it shall be distinguished from the principle of taxation based on facts. Under the principle of taxation by law, how to distinguish the regulation of tax bases and regulation of ascertaining facts is widely controversial in constitutional interpreta-tion practices. The former shall cover the scope of the subject and ob-ject of a specified taxpayer and the method of calculating amounts of tax. The latter shall cover what evidence rule shall be applied to ascer-tain facts and what facts shall be ascertained when a taxpayer fail to provide evidence in violation her cooperative duty.