所得稅法第11條第2項之合憲性探討──以「自力耕作、漁、牧」與「經營農、漁、牧事業」之區別為中心

Disscussion on the Constitutionality of the Article 11 Paragraph 2 of the Income Tax Law - Focus on the Difference between Self-Cultivation, Fishing, Animal Husbandry, and Operating Agriculture and Animal Husbandry

本文係探討所得稅法第11條第2項及同法第14條第1項第6類規定（下稱「系爭規定」）暨財政部2012年11月8日台財稅字第101001929　40號函、財政部1980年8月26日台財稅字第37150號函、行政院農業委員會農牧字第1020213774號函，涉及人民是否應納營業稅之「營業行為」之立法定義，幾乎已涵括所有人民之一切經濟活動在內，所得稅法第11條如此廣泛的界定「營業行為」是否流於空泛？或過大之法條文義定義範圍形同未規範？例如：同樣屬於農民養雞販售雞蛋之行為，究屬所得稅法第14條第6類之自力的「農牧行為」抑或屬所得稅法第11條第2項之「營利事業」？目前係任由行政部門在無法律授權下自行發布行政命令來界定「自力耕作」行為與「營業」行為兩者之界線，此些作法是否涉及違憲疑義提出探討。

The purpose of this article is to investigate the concept of “Profit-Seeking Behaviors” stipulated in Article 11, Paragraph 2, and Article 14, Categories 1 and 6 of the Income Tax Act of the R.O.C (hereinafter referred to as the stipulations in point). The meaning of the concept was also explained in the explanation orders of Tai Cai Hsui Tzu No. 10100192940 (Nov/08/2012), and No. 37150 (Aug/26/1980), issued by the Ministry of Finance. It was also discussed in the explanation order of Non Mu Tzu No. 1020213774 issued by the Council of Agriculture of the Administrative Yuan. The above mentioned stipulations and explanation orders relate to the legislative definition of the concept of “Profit-Seeking Behaviors,” which covers almost all economic activities of people. If an activity is covered in the concept of “Profit-Seeking Behavior,” it will be taxed under the Business Tax Act.Whether the concept of “Profit-Seeking Behaviors” defined by the Income Tax Act is too vague is the issue at hand. A legal concept that is overbroadly defined is equal to one that is undefined. For instance, when a farmer sells eggs laid by hens he raised, shall his behavior be construed under the concept of a behavior which raises “Income from self-undertaking in farming, fishing, animal husbandry, forestry and mining” stipulated in Article 14, Category 6 of the Income Tax Act, or under the concept of “Profit-Seeking Enterprise” in Article 11 of the same Act? The borderline between the two concepts mentioned above was delineated by explanation orders issued by administrative agencies without mandate in laws. I maintain that the current practice is questionable in its constitu-tionality. I investigated the above-mentioned issues for this article.