我國連結稅制之制度與行政法院判決研究

Abstract

隨著企業經營型態日漸複雜，為了多元化經營分散風險、水平或垂直整合、擴大行銷、戰略目的等以達規模經濟、降低產業成本、增加盈餘之目標，企業個體間逐漸構成複雜的集團結構。 關係企業集團內，各企業為法律上各自獨立的主體，不過互相間透過持有股權、掌控人事權或其他方式，存在控制和支配之實質關係，使得被控制或被支配公司在經營上喪失部分或全部之自主性。上述因素將導致關係企業在稅法上可能產生許多問題，蓋此控制與支配關係會使得關係企業之課稅無法反映其真實之負擔能力。如何正確衡量關係企業於所得稅上之負擔能力、課徵關係企業之營利事業所得稅，向來為稅法上一難題。 為了能正確課徵關係企業之營利事業所得稅，我國於民國91年參考美國與日本之制度引入「連結稅制」，規定於金融控股公司法與企業併購法。觀察我國所參考之美國內地稅法連結稅制，可說是美國稅法中最為複雜繁瑣之制度，但反觀我國僅依賴少數條文運作，導致實務上財政部函釋恣意解釋與稅務爭訟不斷。 本文將從我國法律規定、函釋與行政法院判決出發，釐清現行連結稅制之問題根源，並以我國稅法原則之租稅法律主義與量能、實質課稅原則作為連結稅制之制度輪廓，檢討現行規定，與就制度之實質內容，參考美國內地稅法、我國所得稅法與財務會計準則等，嘗試提供立法、修法建議，以建構我國完整之連結稅制，再以本文提出之完整連結稅制，回頭審視目前我國之連結稅制稅務訴訟。

As business operation becomes more complex, corporations are consolidating into groups of sophisticated sructures to reach goals like economy of scale, costs cutdown and increasing profis, by diversify operating, risk diversification, horizon or vertical integration, market expansion and strategies. In a controlled group of corporations, each member is a legally independent entity. But by stock ownership, power of personnel designation or other means of controlling, there is a substantial relationship of controlling and subordinate between the members. This relationship might damage self direction of subordinate members in business operating. As result, how to accurately calculate tax income of the controlled groups of corporation has been a difficult question for a long time. In order to correctly levy taxes on corporations, Taiwan took reference to U.S. and Japan, and introduced the consoleded tax return in 2002 which is statued in Financial Holding Company Act and Enterprises Mergers and Acquisitions Act. By examing Internal Revenue Code, we could see that consolidated tax return has been considered one of the most complicated and intricate system among I.R.C. In contrary, Taiwan’s consolidated tax return has been relying on few rules to perform, which leads to arbitray interpretation by Department of Treasury’s administrative orders and consecutive tax litigation. This thesis will start from Taiwan's tax regulations, administrative orders and court cases, and compare our consolidated tax return to U.S. and try to clarify the root problem of our system. After the preceeding discussion, this thesis will try to apply principle of taxation by law, principle of the ability to pay and principle of substance over form as the framework to exam our current system and take referrence to consoilidated tax return of Internal Revenue Code, tax law of Taiwan and accounting principle, in order to offer some opinions for legislation or revising current regulation and form a integrated consolidated tax return.