| 英文摘要 |
The legal framework which regulating tax avoidance conducts can be divided into two categories, the general preventive provision and the special preventive provision. The general preventive provision as stipulated under Article 12-1 of the Tax Collection Act of 2009 is deemed by legal academia as the principle of substance-over-form. The nature of the principle of substance-over-form shall be analyzed as an interpretative method of tax law and shall conceptually be distinguished from the principle of substantive taxation which collects tax basing on the fact of reality. From this perspective, the practical application of the general preventive provision shall begin at looking for the substantive provision which is avoided by the tax payer, interpreting it from its legislative goal, ascertaining whether there is any loophole exists, and determining whether the tax payer abuses the his freedom of compliance to avoid falling into the statutory elements of tax avoidance in order to gain his tax benefits. Only after fulfilling those inquiries can the tax authority adjust the tax burden of the tax payer in accordance with the specific tax provision. Unless under its exceptions, the principle of substance-over-form shall only be utilized as adjusting the tax burden of the tax payer to ask him to pay additional tax and shall not be utilized to reduce his tax burden. And, the principle of substance-over-form shall not be utilized as the legal basis to punish tax payers. In practice, the general tax avoidance conducts can be divided into two categories, the repeated back-and-forth category and the step-by-step transfer category. Under the special preventive provision which regulating tax avoidance conducts, the most important things are the non-arm’s length transfer pricing among affiliated enterprises and the utilization of investment companies by individual shareholders to hide the distribution of profits. The foregoing two categories are tax avoidance conducts under controlling relationships. However, in addition to the above mentioned provisions and those anti-thin capitalization provisions, In Taiwan there is practically no preventive provision to prevent foreign companies who are controlled by domestic tax payers from substantive operations and shall enact those provisions as soon as possible to acquire the legal basis of adjusting the tax burden on the taxation of foreign source incomes. |
