實質課稅原則在稅捐規避案例的適用──借用德國實務經驗

The Substance over Form Principle in Application of the Tax Circumvention: Basis on the German Practical Experience

The Substance over Form Principle, whether in Taiwan or Germany, is as a way of tax interpretation for the abuse of legal form by the cases which is about tax circumvention. But for similar cases there are great differences in the result of the application between Taiwan and Germany. Explore the reasons, the first, from the view of the form is not clear for the position of the Substance over From Principle in Taiwan; the second, from view of the substance we ignore that the Substance over Form Principle is as the purposive interpretation by the tax law. In contrast, Germany taxes trial practice used the Substance over Form Principle by the cases of the tax circumvention with a wide thought, in addition, in the analysis of the cases to the tax circumvention also put in the purpose of the fundamental rights of the Constitution law. The text tried to explore the German cases which are about the Substance over Form Principle in application of the cases by the tax circumvention, and basis on the Germany practical experience review our tax judgment by the similar cases.