國家補貼與租稅優惠：以WTO法與歐盟法為核心

State Aid and Tax Credit: the Cases of WTO and EU Law

為探究租稅優惠會否成為扭曲國際貿易的不合法規範，本文選取世界貿易組織(World Trade Organization, WTO)之「補貼暨平衡稅協定」(Agreement on Subsidies and Countervailing Measures, 以下簡稱 SCM 協定)的規範，作為分析的比較法依據。
接著，本文選取歐盟法有關國家補貼之規範作為比較法依據。在介紹歐盟法之國家補貼規範前，因「國家補貼」規範廣泛涉及歐盟法上之權力運作、組織運作、歐盟與會員國間之互動，故本文亦研究歐盟之形成過程、歐盟法與會員國之互動方式，最後才就《歐盟運作條約》與歐盟執委會、歐盟法院之間有關國家補貼之學說、實務詳加介紹。
經比較WTO 法之國家補貼制度，與歐盟法之國家補貼制度後，本文發現，我國產業創新條例第10 條第2 項授權制定之「公司或有限合夥事業研究發展支出適用投資抵減辦法」第7 條、第8條第3 項第4 款，可能該當SCM 協定第3.1 條(b)款之進口替代補貼，而構成SCM 協定第2.3 條之禁止性補貼。故我國之租稅優惠雖然未曾被大法官宣告違憲，但卻可能受到違反WTO 之SCM 協定的質疑。
就歐盟法之國家補貼規範而言，儘管我國並非歐盟之成員國，但藉由比WTO 更詳盡之歐盟法之國家補貼規範，可探知如果對於租稅優惠之管制不足，反而有使人作為避稅工具之高度可能。經過本文對於歐盟法之檢視，本文發現，產業創新條例第10條可能該當歐盟法上之國家補貼。
最後，本文除了呼籲我國之租稅優惠，在大法官審查上，應有較釋字第565、635 號更為明確之審查標準，並應適時對於租稅優惠闡明其內涵，以避免我國政府設計不合理之租稅優惠。

For researching whether Tax Credit may become illegal behaviors which distort international trade, this article chooses Agreement on Subsidies and Countervailing Measures from World Trade Organization, to be the researching object of Comparative Law.
Next, this article chooses the State Aid of European Union Law to be the researching object of Comparative Law. Before introducing the rules of State Aid, since “State Aid” is broadly relevant with the power functions, structural functions of European Union, and the interactions between the European Union and the member states, this article also researched the formation of European Union and the interactions between the European Union and the member states. Finally, this article would introduce the relevant theory and practice with State Aid from “Treaty on the Functioning of the European Union”, European Commission and European Court.
After comparing the system of Subsidy from WTO and the system of State Aid from the European Union Law, this article found out that the Articles §7、§8 Section 3 Number 4 of “Companies or Limited Partnership Companies” Research and Development Expenditure Investment Deductions Method” authorized from the Article §10 Section II of “Statute for Industrial Innovation” may be seen as the Import Substitution Subsidy from the Article 3.1 (b) of SCM Treaty, and also be seen as the Prohibited Subsidy from the Article 2.3 of SCM Treaty. Therefore, although the Tax Credit has never been claimed unconstitutional in Taiwan, it might be considered against the SCM Treaty from WTO Law.
For the State Aid of European Union Law, even though Taiwan isn’t a member state of European Union, but using the European Union Law, which is more detailed than WTO Law when mentioning the State Aid, we could found out that, if the regulations for the tax credit isn’t enough, there will be high probability that the tax credit will be used as the tools for tax evading. After this article using the European Union Law to analysis, this article found out that the Articles §10 may be seen as the State Aid from the European Union Law. And it is because Taiwan is not a member state of European Union, this article would not analysis whether the tax credit from “Statute for Industrial Innovation” in Taiwan would be considered as the State Aid which could be exempted or wouldn’t need to be notified to the European Commission, this article wouldn’t discuss whether there could be a system like the interaction of European Commission and the member states of European Union to regulate the tax credit in Taiwan, either. However, depending on the discussion of the procedures of the State Aid from European Union Law, we could found out that the procedures governing the Subsidy in SCM Treaty are not complete.
Finally, this article proclaims that the Judicial Interpretation in Taiwan should have the standard clearer than the Judicial Interpretation Number 565, and Number 635, and this article proclaims that the Constitutional Court Judges should declare what the exact content of the tax credit is, therefore, the governments of Taiwan wouldn’t make tax credit which is not logical.