論營利事業所得稅上投資損失

Abstract

因財務會計及稅務會計認列標準不一致，營利事業所得稅投資損失認列上，向來為實務上爭訟的重要課題與訟源。故，本文以營利事業投資損失認列為研究主題，試圖整理現行實務上之見解及爭議。然，因稅法上並無關於投資及投資損失定義，故本文先從財務會計與稅法規定兩者不同角度分析，定義何謂投資損失。又因我國係採財稅相關型制度，稅務會計係以財務會計為基礎進行帳外調整，故不免於營利事業所得稅投資損失認列上有永久性差異與暫時性差異情形。其中，又以稽徵機關或行政法院認定營利事業係非常態投資稅捐規避行為，進而援引實質課稅原則剔除其投資損失，所產生之永久性差異影響最大。然，因其認定之標準不一致，且法律上亦無明文之規定，致生營利事業無所適從之問題。故，本文綜合整理我國、德國及美國之見解，提出判斷稅捐規避行為之要件供參考。此外，倘經判斷後認定係稅捐規避行為而例外援引實質課稅原則時，本文以為，應以租稅法律主義為外在界線，而內在界限上亦應符合量能課稅原則。又由於稅法上並無認定營利事業是否屬非常態投資之稅捐規避防杜條款，故本文運用類型化觀察法於判決整理上，期能勾勒出實務上認定營利事業從事非常態投資之標準。歸納後可將判決分為兩類，第一類為關於營利事業所得稅查核準則第99條各款之文義解釋及適用爭議。第二類則為關於認定營利事業於各種情況下之投資是否係屬非常態投資稅捐規避之判斷標準。本文檢視後發現，稽徵機關或行政法院於認定非常態投資稅捐規避行為時所提之理由，有過於粗糙武斷、標準不一致，或有違反租稅法律主義，或有不符量能課稅原則之嫌。是以，本文認為根本解決之道，應是以法律具體明定個別的非常態投資之稅捐規避防杜條款，使各項濫用法律形式之非常態投資稅捐規避行為概念具體明確化。

Due to the different standards between financial accounting and tax accounting, the recognition of the investment loss in profit-seeking enterprise income tax has always been an important issue and source of litigation for practical litigation. Therefore, in this thesis, we recognize the investment loss in the profit-seeking enterprise as the research topic, and try to summarize the opinions and controversies in the current practice. However, because there is no definition of investment and investment losses in our tax law, we try to define what the investment loss is by analyzing from the different perspectives of financial accounting and tax law at first. In addition, due to our Quasi-dependence taxation system, the tax accounting is adjusted on the basis of financial accounting, so it is inevitable that there will be permanent and temporary differences on the recognition of the investment loss in profit-seeking enterprise income tax. Among them, permanent differences resulted from the situation of when the taxation authority or the administrative court determines that the profit-seeking enterprise is in an abnormal state of investment tax avoidance, and then invokes the substantive taxation principle to eliminate its investment losses are considered having the greatest impact on the recognition of the investment loss. However, because their standards of recognizing an abnormal state of investment are inconsistent, and there is no legally stipulated law, it results in the problem of that profit-seeking enterprise is unable to comply with. Therefore, in this thesis, we propose standards of judging tax avoidance behavior for reference by comparing our tax law system about tax avoidance issue with the one in Germany and in the United States. In addition, if the taxation authority or the administrative court determines that the profit-seeking enterprise is in an abnormal state of investment tax avoidance, and then the substantive taxation principle is invoked, we believe that the taxation legalism should be used as its external boundary, and the ability-to-pay principle should be used as its internal boundary. Moreover, because there is no prevention clause of recognizing whether the profit-seeking enterprise is in an abnormal state of investment tax avoidance in our tax law system, therefore, we use the method of classification by observing to sort out the administrative judgments, and to outline standards of recognizing the abnormal investment in the profit-seeking enterprise in practice. After the induction, the judgments can be divided into two categories. The first category is the textual interpretation and applicable disputes of the Article 99 of the Guidelines for Examination of Profit-seeking Enterprise Income Tax. The second category is about standards of judging whether the investment in the profit-seeking enterprise in various circumstances is abnormal and viewed as a tax avoidance. And we found that reasons cited by the taxation authority or the administrative court in determining whether the profit-seeking enterprise is in an abnormal state of investment tax avoidance are too rough and arbitrary, and standards are inconsistent, or there is a violation of the taxation legalism, or there is a violation of the ability-to-pay principle. Therefore, we believe that the fundamental solution should be to make the specific provision to prevent the abnormal investment tax avoidance, so that the concept of the abnormal investment tax avoidance behavior of the abuse of legal forms can be specifically clarified.