稅法上抵銷之行政行為定性問題

Issues on the Characterization of Administrative Actions of Offsetting under Tax Law

公法債權債務或公、私法債權債務間得為抵銷，係臺灣現今司法及行政實務所肯認，然一般公法上抵銷，除約定抵銷外，因行使抵銷權未創設法律效果或權利義務，應為「事實行為」，僅為債之消滅原因，不產生行政處分之規制作用。另未具「抵銷適狀」時，即應訂定公法上抵銷契約，徵收補償費與工程受益費之抵銷為經典案例，為使兩造當事人負有將來給付義務之負擔契約。今稅捐稽徵實務及司法實務，均認「退稅抵繳通知書」及「退稅抵繳證明書」具有行政處分性質，然此實反於臺灣學說及實務，認公法上抵銷為事實行為之見解，且以不具抵銷適狀債務為抵銷客體，惟其行為形式卻非以行政契約為之。稅捐稽徵法既欲以稅法上抵銷創設稅捐徵收方式，考量稅捐稽徵實務上有滯納金、怠報金等租稅附帶給付，及違反租稅法規定義務之罰鍰，倘與退稅相互抵銷，即反於債務成立之本旨，爰立法文字不宜再以「準用」、「適用」等字眼，毋寧自行修法完備抵銷制度。

The offset between public law claims and debts or between public and private law claims and debts is recognized by the current judicial and administrative practices in our country. However, in general, public law offset, except for agreed offset, is a “factual act” because the exercise of the right of offset does not create legal effects or rights and obligations. It is only the cause of the extinction of the debt and does not produce the regulatory effect of administrative sanctions. In addition, when there is no “suitable condition for offset”, a public law offset contract should be established. The offset of collection compensation and project benefit fees is a classic case, which is a burden contract for the two parties to bear the obligation to pay in the future. In the current tax collection practice and judicial practice, both “tax refund offset notice” and “tax refund offset certificate” are recognized as administrative sanctions. However, this is contrary to the view of our country's doctrine and practice that public law offset is a factual act, and the debt that does not meet the conditions for offset is the object of offset, but the form of the act is not an administrative contract. Since the Tax Collection Act intends to establish a tax collection method through offsetting in the tax law, considering that in practice, there are tax ancillary payments such as late payment fees and non-reporting fees, as well as penalties for violating obligations stipulated in the tax law, if these are offset against tax refunds, it would go against the original purpose of debt establishment. Therefore, the legislative text should no longer use words such as “applicable” and “applicable”, and it is better to amend the law to complete the offset system.