論鐘點費之所得類型定性

Research on the Categories of Income: Taking Remuneration on an Hourly Basis for Example

「鐘點費」之所得類型如何定性？乃實務上由來已久之問題。目前實務習將鐘點費二分為「講演鐘點費」與「授課鐘點費」，並將前者定性為執行業務所得，後者定性為薪資所得。釋字第745號解釋第二部分，謂財政部74年4月23日台財稅第14917號函，認大專院校兼任教師之授課鐘點費屬薪資所得，尚無牴觸租稅法律主義，然大法官解釋未論及執行業務所得與薪資所得之區辨，恐引起個案適用上之疑義。本文欲指出講授內容是否含有「授課」性質，與所得類型之定性並無關聯，正本清源之道，應於具體個案中回歸執行業務所得與薪資所得之判斷標準，亦即是否為獨立勞動所得加以判斷。此外，針對一次性、非經常性的鐘點費收入，可否改列為其他所得？亦併予探討之。

When it comes to remuneration on an hourly basis, how to classify it into different categories of income has become a problem. From the perspective of legal practice, remuneration for speeches and lectures on an hourly basis is classified as income from professional practice, while remuneration for lessons on an hourly basis is classified as income from salaries and wages. The Interpretation No.745 indicates that The Letter Ruling Tai Cai Shui Zi No. 14917, issued by Ministry of Finance on April 23, 1985 stating that the hourly pay for adjunct teachers at universities and colleges also belongs to the category of salary income, is consistent with Article 19, which requires taxation in accordance with the law, and Article 23 of the Constitution. However, the Interpretation does not mention the distinguish between income from professional practice and from salaries and wages, and might lead to a misunderstanding. The study tends to point out that there are problems in current legal practice, and suggests that one stick to the criteria for distinguishment of income from professional practice and from saleries and wage when facing this kind of cases. The study also discuss that in what situation may remuneration on an hourly basis belong to the category of other income.