論稅捐秩序罰行為人之責任要件：以德國法為中心

The Responsibility Requirements of Tax Return Behaviors in the Context of German Law

行政罰法第七條：違反行政法上義務之行為，非出於故意或過失者，不予處罰。惟稅捐稽徵機關常以漏稅金額達一定標準下及納稅義務人「事後」是否補繳稅款承認違章，為處罰標準。機關常將舉證責任倒置，要求納稅義務人應就利己之事實，如故意或過失事實進行舉證，緃使非故意逃漏，常以「緃無故意，亦難謂為無過失」逕予裁罰，未慮及違法行為人受責難程度與罰責之關聯性，及未考量納稅義務人個案受責難之程度，致最高行政法院判其裁量怠惰。本文為探討何種情形為故意及過失？乃參考刑法關於故意或過失不同程度之責罰，將違法行為人「受責難程度與罰責之關聯性」法則，及舉證分配及其應遵循之證明度應用於租稅罰，俾符正當法律程序。

Article 7 of the Administrative Penalty Law: Violations of obligations under the Administrative Law shall not be punished if they are not intentional or negligent. However, the tax collection authority often takes the amount of tax evasion reaching a certain standard and whether the taxpayer pays the tax ''after the fact'' to admit the violation as the penalty standard. The authority often reverses the burden of proof, requiring taxpayers to provide intentional or negligent facts, to insist unintentional escape, and to impose penalties on ''no intention, but it is difficult to say that it is no fault'', does not take into account of the correlation between the degree of culpability and the punishment of the offenders’, resulting in the Supreme Administrative Court's judgment of laziness. This article is to explore what taxpayer’s intentional and negligent intention means. It refers to punishment for intentional or negligence in the Criminal Law, and applies ''the relationship between the degree of blame and punishment'', the distribution of evidence and the degree of proof that should be followed to apply to tax penalties.