公證人在稅務調查程序上之拒絕協力權

Notary’s Right to Refuse to Cooperate in the Tax Investigation Process

近年來，稅捐機關為充分掌握納稅義務人的課稅資料，經常依據稅捐稽徵法第30條規定，要求民間公證人提供納稅義務人的公、認證資料，以便利稅捐的稽徵。現行公證法第14條雖然規定「公證人有守密義務」，但面對稅捐機關排山倒海的稅務調查，全臺各地公證人確實有苦難言。我國稅法雖未如同德國稅法明定公證人有「拒絕協力權」（包含「拒絕陳述權」及「拒絕提示權」），但本文認為，為保護公證人與其客戶間的「信賴關係」，進而維繫該等職業在社會上被賦予的中立第三者地位，公證人在面對稅務調查時，仍應享有「拒絕協力權」的保障。為今之計，積極修法以填補漏洞，固為釜底抽薪之道；在法律未明定前，稅捐機關及法院也應該主動類推適用我國刑事訴訟法第182條規定，賦予公證人在稅務調查程序中，享有「拒絕協力權」的保障。

Recently, to effectively obtain taxpayers’ tax information and to more conveniently collect taxes, tax collection authorities often ask notaries to provide taxpayers’ notarizing or certifying information according to Article 30 of Tax Collection Act. Despite being stated in the Article 14 of the Notary Act which affirms the notary’s confidentiality obligation, it is in fact hard for notaries in Taiwan to performance their duties as understandably, they are under considerable pressure from tax collection authorities in tax investigations. On the other hand, in Germany, there is no rule against a notary’s right to refuse to cooperate (which includes the right to refuse testimony and presentation) as there is in Taiwan. However, this paper advocates that notaries should be given “the right to refuse cooperation” in tax investigation in order to protect the “relationship of trust” between notary and their client as well as to keep notary’s social role remaining a neutral third party. As for now, the essential solution is indeed to amend the law to plug this loophole. However, before amending, tax collection authorities and court should also apply by analogy Article 182 of the Code of Criminal Procedure on their own initiative to provide notary the right to refuse cooperation in tax investigation.