從所得本質與合憲性要求探討我國證券交易所得稅制─以德國法制為比較研究

Abstract

我國於1973年3月1日正式全面開徵證券交易所得稅後，歷經多次停徵、復徵，自1990年1月1日起停徵證所稅、調高證交稅稅率為0.6‰之後，政府每每提出復徵證所稅之議題均遭投資人反對，加上媒體渲染，證所稅之復徵儼如洪水猛獸。我國證券交易所得稅制之修法最終於2012年7月25日在立院三讀通過，並於2013年1月1日起施行，就部分證券交易所得於符合一定條件下取消停徵規定。 修法前因證券交易所得依所得稅法第4條之1規定停徵所得稅，僅課徵證券交易稅，造成諸多不合理現象，主要包括：一、資本利得與薪資所得稅課上之不平等待遇；二、對證券交易所得課稅不重視成本費用及損失之扣除；三、對證券交易所得給予租稅優惠反而導致實務對脫法避稅之認定流於恣意。雖證券交易所得稅制乃至資本利得稅制之改革，必須因時制宜，惟其稅制之擬定若與所得本質及合憲性要求背道而馳，則我國將與法治國家（尤其是實質法治國）、租稅正義漸行漸遠，長久下來，不利於我國建立符合國際需求之投資環境。是以，從所得本質與合憲性要求之角度檢討我國證券交易所得稅制，實有必要。 與德國體系完整、架構嚴謹之稅捐法制相較，我國稅制毋寧尚有許多改革與完善之空間。本篇論文最重要之處在於對證券交易所得之本質予以分析，同時考量憲法上納稅人基本權保障對於證券交易所得稅制之合憲性要求，參酌德國證券交易所得課稅制度，對我國證券交易所得稅制提出改革與完善之建議，期能使我國投資環境與國際接軌，同時得以實現租稅正義。

Since our nation officially started to impose income tax on gains derived from securities transactions on March 1st, 1973, this specific tax had been suspended and re-imposed multiple times over the past decades. After the government suspended the income tax on gains derived from securities transactions on January 1st, 1990 and raised the tax rate of securities transactions to 0.6‰, investors opposed to the idea of re-imposing income tax on gains derived from securities transactions whenever the government proposed to reinstate this policy. In addition to the exaggerating reports and coverage by the media, re-imposing income tax on gains derived from securities transactions simply causes much controversy and commotion. Finally the Legislative Yuan passed through the third readings of the amendment to income tax system on gains derived from securities transactions on July 25th, 2012. The Act has come into force since January 1st, 2013, cancelling the suspense of income tax on gains derived from securities transactions under certain circumstances. Before the amendment came into effect on July 25th, 2012, gains derived from securities transactions were tax-free according to Article 4-1 Income Tax Act, which only allowed the government to collect the securities transaction tax. This previous policy had led to many unreasonable phenomena , mainly including: 1. The unfairness of tax burdens between capital gains and income from salaries and wages; 2. The deductions of costs, expenses and losses have been unnoticed; 3. Tax preferences for gains derived from securities transactions have on the contrary made the practice reckless in defining tax avoidances. Though the reformation of tax system on gains derived from securities transactions or on capital gains should suit its measures under certain circumstances, our nation would depart further away from being a legal state (especially a substantial state) and achieving tax justice, once the decision on tax system becomes contrary to the nature of income and constitutionality. This situation is not suitable for our nation to cultivate an investment environment that meets international demands. It is necessary to review the income tax system on gains derived from securities transactions from the perspectives of the nature of income and constitutionality. Compared to the complete and well-knit German tax law system, the tax system in Taiwan still has much room for reformation and improvement. The most important argument of the thesis is to analyze the nature of gains derived from securities transactions. Meanwhile, given the constitutionality of income tax system on gains derived from securities transactions, which is based on the protection of taxpayers’ fundamental rights, the thesis also takes into account of the German tax system on gains derived from securities transactions, to make proper recommendations for our nation. The Author expects that our nation could be in line with the international practice in the investment environment and thus achieve tax justice.