不法所得之剝奪與課稅——以利得沒收與所得稅為中心

Abstract

本文以不法所得之剝奪與課稅為題，自刑法利得沒收制度出發開始探討，並將討論延伸至稅捐法上，特別是所得稅上應如何處理不法所得之問題，此亦為本論文最為核心之問題意識。於此，因為我國實定法規範之缺乏，本文先從所得理論、量能課稅原則的理解開始，一直討論到我國實務學說以及美國、日本等比較法上之見解，其後並根據量能課稅原則以及我國法現有之規定，建立不法所得與合法所得同樣應予課徵所得稅之結論，且對於所得之理解方式以經濟實質為準，而不是民法上權利之有無。

其次，立於不法所得應課徵所得稅之前提之上，本文進一步討論應如何計算稅基之問題。所得之分類與收入在此並不是太大的問題，最有爭議的部分落在獲取不法所得之成本費用可否扣除之議題上。同樣的，在我國實定法缺乏指引的狀況下，本文爬梳了我國之實務學說與美國、日本等比較法上之制度演變，在肯定說與否定說之間提出了本文之折衷見解，試圖調和完全肯定所難以執行之處及完全否定可能失之過苛之處。本文認為，應以是否有「合法憑證」區分可否扣除。換言之，此時即不區分合法所得或非法所得，適用同一之標準，可提出合法憑證者，方得扣除之。在此為不法所得之成本費用計算問題，提出了一個可供參考之基準。

再者，對於不法所得之所得稅課徵與利得沒收之交錯上，可分為兩個部分討論。其一是所得稅課徵與財產犯罪之利得沒收之關係，另一則是所得稅課徵與逃漏稅捐之利得沒收之關係。就前者而言，我國實務學說及比較法上多認同於不法所得實際失去如被沒收或返還之情形時，在所得稅之課徵上可以進行調整。本文原則上亦認同此一觀點，惟在依法課稅原則之下，應有法律依據方得進行稅捐之調整，我國應明定於稅法為宜。而扣除所歸屬之年度，則應以實際失去之年度為準，以符合損失之本質。

關於後者，所得稅與利得沒收間則處於一種競爭關係，競逐同一筆不法所得，惟兩者分別歸屬於稅捐國庫以及司法國庫。同時，兩者亦具有優先劣後之關係，由所得稅之課徵為優先，若已繳納，則無須再對逃漏稅捐之稅額進行利得沒收。另一方面，因利得沒收之時效較所得稅為長，可於所得稅罹於時效後發動，使納稅義務人無法保有其逃漏稅捐所獲之不法所得。

This article is mainly about the deprivation and taxation of illegal income. In this article, we start from the criminal proceeds confiscation system and extend the discussion to the tax law, especially how to deal with the problem of illegal income on income tax. In this part, due to the lack of statutory law, we starts from the understanding of income theory and ability-to-pay principle, and continue to discuss the precedents and theories in Taiwan, also the comparative laws as United States and Japan, etc. Afterwards, based on ability-to-pay principle and the existing regulations in Taiwan, we conclude that Illegal income and legal income should be taxed equally. In addition, income should be understood de facto rather than de jure.

Second, based on the conclusion that illegal income is taxable, this article also discusses how the tax base should be calculated. The most controversial part is the deductibility of the costs and expenses of unlawful income. Similarly, due to the lack of statutory law in Taiwan, this article organizes precedents and theories in Taiwan, United States and Japan. We propose a compromise between the positive and negative views in an attempt to cope with the confrontation. In this article, we believe that we should distinguish deductibility by whether there is "legal receipt" or not. In other words, there is no distinction between legal or illegal income to apply the standard. Here provides a benchmark for the calculation of the costs and expenses of illegal income.

In addition, the intersection of income tax and criminal proceeds confiscation can be discussed in two parts. One is the relationship between income tax and the confiscation of property crimes, and the other is the relationship between income tax and the confiscation of tax evasion. As far as the former is concerned, most of the precedents and theories in Taiwan and other countries agree that income tax can be adjusted when the illegal income is actually lost such as confiscated or returned. However, under the principle of taxation by law, there should be statutory laws for tax adjustment, which should be explicitly stated in tax law in Taiwan. Also, the year of deduction should be the year of actual loss in order to coordinate with the essence of loss.

As far as the latter is concerned, criminal proceeds confiscation are competitive, competing for the same illegal income, but what they obtained are distributed to tax treasury and judicial treasury. At the same time, they have a sequence of priority and inferiority. Income tax takes priority over criminal proceeds confiscation. If the tax is paid, there is no need for confiscate the tax of evasion. On the other hand, since the statute of limitations of criminal proceeds confiscation is longer than that of income tax, we can make use of it after that of income tax has expired. Therefore, that the taxpayers cannot keep those illegal gains from tax evasion.