租稅核課處分存續力之突破與退稅請求權

Tax Assessment and Tax Refund Claim

2010年1月6日施行之稅捐稽徵法（Tax Collection Act）第二十八條規定：「納稅義務人自行適用法令錯誤或計算錯誤溢繳之稅款，得自繳納之日起五年內提出具體證明，申請退還；屆期未申請者，不得再行申請（第一項）。納稅義務人因稅捐稽徵機關適用法令錯誤、計算錯誤或其他可歸責於政府機關之錯誤，致溢繳稅款者，稅捐稽徵機關應自知有錯誤原因之日起二年內查明退還，其退還之稅款不以五年內溢繳者為限（第二項）。」上開規定自施行以來，引發許多爭議。本文之目的在釐清租稅核課處分與退稅請求權之關係，並釐清稅捐稽徵法第二十八條規定之性質。最後則對該規定提出檢討及調整之建議。

Article 28 of the Tax Collection Act regulates that “In the event that a taxpayer has made overpayment of any tax as a result of mis-application of tax law or mis-calculation by him or herself, an application for refund of such overpaid tax supported by substantial documentation may be filed within five years from the date of payment thereof. Application for refund of such overpaid tax shall be denied if it is filed after the said five-year period (Paragraph 1). In the event that a taxpayer has made overpayment of any tax as a result of mis-application of tax law or mis-calculation by the tax collection authorities or other mistakes that can be attributed to relevant government agencies, the tax collection authorities shall refund the overpaid tax within two years from the date the mistake was found out, and the period of refundable overpayment of tax is not restricted to within five years from such date (Paragraph 2).”
Many disputes have arisen since the implementation of the above provisions. The purpose of this paper is to clarify the relationship between the tax assessment and the claim of tax refund, and the nature of the provisions of Article 28 of the Tax Collection Act. This article in conclusion also provides a review of provisions and proposes adjustment recommendations.