稅捐復查程序相關爭議問題之研究—以納稅人程序保障為核心

Abstract

稅捐稽徵法第35條規定，納稅義務人對於核定稅捐之處分如有不服，應向原處分機關申請復查，經復查決定後如有不服，始得依同法第38條之規定提起訴願及行政訴訟，故復查乃訴願之先行程序，非經踐行復查程序不得逕行提起訴願。此規定係基於稅捐案件具有比一般行政案件更為專業且複雜之特色，因此在稅捐行政救濟程序中，對於核定稅捐之處分，增加了一道前置的復查程序，目的是為了給予原處分機關有自我審查之機會並減輕上級機關之負荷。然而稅捐稽徵法中對於復查程序僅以短短數個條文規範之，其餘未規範之事項，則藉由財政部解釋函令及行政法院相關判例或判決形成實務上所依循之模式與原則，對於行政機關依法行政之宗旨及納稅人權益與程序上之保障，均造成許多爭議。 現行訴願法第58條第2項規定已給予原處分機關自我審查之機會，程序上已接近訴願之先行程序，因此復查程序存在之必要性即受到質疑。惟目前現行法制上對於核定稅捐之處分，仍以踐行復查程序為提起訴願之必要先行程序。因此對於因復查程序之存在而產生之爭議問題，本文試圖從納稅人程序保障之觀點出發，就復查程序之本質，來檢視其實質之目的及其所為之復查決定實質之性質，藉以判斷相關法規範與行政法院相關判例或判決之妥適性，期能藉由學說與實務見解之整理，釐清相關爭議問題，並在兼顧納稅義務人權益及租稅制度所追求之公益下，嘗試提出可能解決之方法或配套措施之建議，以供未來立法政策方向之參考，希望作為本文之小小貢獻。

Pursuant to Article 35 of the Tax Collection Act (“Act”), a taxpayer disagreeing with the decision made in a tax assessment notice is required to first file an application with the tax collection authorities making such decision for re-examination, and if further disagreeing with the result of the re-examination, he/she may then file an administrative appeal and initiate an administrative litigation in accordance with Article 38 of the Act. In other words, the re-examination application is a mandatory procedure preceding the administrative appeal/litigation; one cannot commence the latter without undertaking the former beforehand. Such requirement is based on the reasoning that tax disputes are generally more specialized and complex than ordinary administration disputes. It is therefore a re-examination application is added to the tax dispute resolution procedure as a preceding measure so that the tax collection authorities have an opportunity to re-examine their original tax assessment decisions and meanwhile, the workload of their superior authorities can be reduced. However, the Act provides a mere several articles with respect to the re-examination procedure and leaves other unmentioned matters determined and guidelines formed by the Ministry of Finance through explanation letters and by the Administrative Courts through precedents and judgments, and thus resulting in many disputes and issues, especially if one takes into account the principle of administration by law and procedural protection of the taxpayers’ rights and interests. Section 2, Article 58 of the Administrative Appeal Act allows the tax collection authority making the administrative action to review its decision when receiving administrative appeal, which in itself may be deemed a kind of preceding procedure and therefore put the necessity of the re-examination procedure into question. Under the current regime, nonetheless, applying for a re-examination remains a mandatory procedure preceding the administrative appeal. In light of the disputes and issues arising from the re-examination procedure, this thesis, with a view focusing on the procedural protection for the taxpayers, seeks to look into the nature and purpose of the re-examination procedure and the re-examination decision made, and further examines the appropriateness of relevant regulations and the Administrative Courts’ precedents and judgments. With the study of related theories and practices, this thesis not only hopes to clarify certain disputes and issues, but also tries to balance the taxpayers’ rights and interests and the public interests under the taxation system and bring forward possible solutions or suggestions on alternative measures for the reference of future legislations and policies.