稅捐稽徵協力義務、推計課稅與協力義務違反的制裁——以納稅者權利保護法第14條規定討論與條文修正建議為中心

On Obligations to Cooperation for Taxation Purpose, Taxation According Estimation and Sanctions for Cooperation Violations: Systematical Analysis of Article 14 of the Taxpayer's Rights Protection Act and These Related Interpretations of the Legislative Constitutional Judgements

納保法第14條規定，涉及圍繞推計課稅有關之數議題，包括推計課稅之正當性、適用要件、對象、程序與推計方法，及禁止按推計對納稅者裁罰。協力義務可分法定與依處分而定。無論是法定或依處分而定之協力義務，最終目的均在達成公平分配稅負。在稽徵程序中，協力義務係輔助職權調查原則，用以發現客觀真實。倘納稅者未盡協力，稅捐機關雖原則仍應職權調查，但若事實甚難調查，或調查費用支出不合比例，徵納雙方於現實上又無法達成認定事實協議，稅捐機關得依法推計。推計僅限於稅基，依義務違反範圍而為一部或全部推計。推計方法，可分內部與外部推計法。為免納稅者因未盡義務卻反而獲利，故推計收入係按市場價格最高、成本費用按市場價格最低者計算，「同業利潤標準」淨利率因此係同業「最佳經營成果」，在適用時雖對個案當事人不利，卻不應因此而認對其具有懲罰性。依同業利潤標準為推計課稅，與同時因納稅者違反協力義務而受裁罰者，並不牴觸不利評價重複禁止。推計證明係依「最大可能蓋然性」，依照最佳經營成果補徵稅款，反之，因違反協力義務而按所漏稅額裁罰者，係以「完全證明」納稅人具可歸責性，以同業經營所獲「最小數額」為量罰基準。 The duties and obligations of the taxpayer in accordance with the tax law or the specific obligation of the taxation agency to form a specific part of the taxation are necessary to achieve the discovery of the elements facts of the taxation, the ultimate goal is to apply the tax law equally, and achieve a fair distribution of tax burden. These duties and obligations to cooperation are therefore under the principle of proportionality test, have the constitutional legitimacy. In the collection procedure, it plays the functional role of the auxiliary authority investigation evidence principle to help find the objective reality. If the taxpayer fails to do his best, the taxation authority should still investigate according to the authority. However, if it is difficult to investigate or the expenditure is disproportionate, in reality, the factual agreement cannot be reached, that is, it can be taxed according to law. The target of the calculation should be limited to the tax base and be determined to be one or all in accordance with the scope of the obligation violation. The method to estimation can be divided into internal method and external method to estimation. The inter-bank profit standard is one of external estimation method. This is based on the application of the principle of prohibition of profit-making for breach of obligations. It is the best operating result for the peers, so it is high than net profit rate, but not punitive. The presumption and the taxpayer are subject to sanctions for breach of the cooperative obligation, so the principle of the rule of law prohibited by repeated punishment is not violated. According to the maximum probabilistic nature, the taxpayer should pay the tax and the tax evasion as the basis for the ruling. The latter is the minimum amount of the same-party operating result based on full confirmation. The two concepts are different. Therefore, it is recommended that the taxation and ruling of the taxation should be divided into different courts to accept the judgment.