資產收購交易課稅問題之研究─以企業併購法為中心

Abstract

企業併購法自立法施行至今，實務上已產生不少課稅爭議。因所有的併購類型中，資產收購交易具有法律形式與經濟實質分離的明顯特徵，本文即以此作為重心，探討資產收購交易在現行企業併購法制下，因財務會計與稅務法令差異及相關法律的解釋、適用所造成的課稅爭議，並嘗試建立此類交易在課稅上應有的地位，以期能作為與一般財產交易的區別。 就財稅差異而言，因稅捐核定具有大量行政的特性及稅捐稽徵法第21條關於核課期間的規定，使得課稅爭議的出現往往落後於法規制定或修正，因此本文所論及資產收購交易的會計處理，將包含過去及目前的規範。另資產收購交易相關的稅務法令，因其他特別法對此規範較少，本文即針對一般課稅規定、企業併購法的租稅措施作介紹。 就法律的解釋、適用而言，我國企業併購法第3章「租稅措施」的立法，係仿造美國內地稅法（Internal Revenue Code）的規定，因此本文即以該法對於資產收購交易的相關規定為比較法的研究對象。而企業併購租稅減免措施的性質，我國文獻較少直接觸及其理論基礎，本文亦藉由對美國學說的觀察並參考其對於規範的批評，以作為我國法的對照。 本文對於目前我國資產收購交易課稅爭議的研究，係採規範目的的角度，並涵蓋規範層面及實務層面。就規範層面的探討，除法律本身以外，尚包括營利事業所得稅查核準則等法規命令，以及稅務行政上極具重要性的解釋函令；而實務面的探討，則例舉數個爭議個案及相關司法判決加以評析，並作為本文結論的基礎。

Several tax disputes have arisen in practice since the Business Mergers and Acquisitions Act was enacted and enforced. Among all types of mergers and acquisitions, asset acquisition has a unique characteristic of separated legal formalities from economic substance. As a result, this article focuses on tax disputes of asset acquisition arising from the differences between financial accounting regulations and tax regulations as well as the interpretation and application of relevant regulations under the current law of business mergers and acquisitions, and tries to establish a proper way to tax the asset acquisition in order to distinguish it from the general asset transactions. For the matter of the differences between financial accounting regulations and tax regulations, tax disputes usually arise after the enactment or amendment of the regulations due to the characteristic of tax decision, which is an administrative disposition made en masse, and the periods for assessment prescribed in Article 21 of the Tax Collection Act. Therefore, the discussion of accounting arrangements related to asset acquisition in this article includes the current and the past regulations. Tax regulations related to asset acquisition are less prescribed by other special laws, therefore, the general tax regulations as well as the tax measures according to the Business Mergers and Acquisitions Act are also introduced in this article. For the matter of the interpretation and application of relevant regulations, the relevant provisions of asset acquisition prescribed by the U.S. Internal Revenue Code, which is the reference to the tax measures prescribed in chapter 3 of the Business Mergers and Acquisitions Act, are the objects of the comparative study in this article. The theory of the nature of tax deduction in connection with business mergers and acquisitions are less discussed in Taiwan. Therefore, to compare with the law in Taiwan, observations on the theory and criticism of the regulations thereof in America are also presented in this article The study of tax disputes in relation to asset acquisition in Taiwan is from the aspect of regulatory purpose in this article, and encompasses both regulatory and practical issues. The regulatory issues include discussions of laws, regulations such as Guidelines for Examination of Profit-Seeking Enterprise Income Tax, and interpretative letters or directives of great importance for tax administration; The practical issues include the analyses of several disputed cases and relevant judicial decisions, which also become basis for conclusion of this article.