稅捐規避之手段-以躉繳保費實務案例評析

Abstract

我國在保險政策上一向以人壽保險給付不列入遺產總額之稅捐優惠，一方面為引導人民購買人壽保險以預防被保險人死亡後其遺族的生計，另一方面為扶植我國人壽保險業，以活絡經濟流通，創造就業機會等之目的。惟保險法以及遺產及贈與稅法中人壽保險金不列入遺產總額之稅捐優惠，卻被有心人士濫用此規定，以躉繳保費之形式，獲得遺產稅之稅捐利益，減少國庫稅收。 國家似乎也發現了此法律漏洞，於所得基本稅額條例中規定每戶保險金不計入所得總額之上限規定，限縮了以保險金不列入遺產總額之稅捐優惠範圍，並以財政部函釋來認定納稅義務人稅捐規避行為，以實質課稅原則令其補稅並裁罰。 本文以人壽保險給付不列入遺產總額之稅捐優惠為基礎，討論稅捐法上之事實認定與法律解釋方法，並區分稅捐規避與節稅、逃漏稅之區別，再佐以實務案例，探討現行法規以及法院判決是否合理。 結論站在法治國原則角度，尊重立法者欲給予的人壽保險稅捐優惠，並兼顧憲法第7條平等原則、第15條保障財產權以及第19條稅捐法定主義，提出立法上之建議，期盼解決以人壽保險規避遺產稅之問題，使我國壽險稅制以及遺產稅制之發展更臻健全。

To encourage people to take out life insurance as a living protection for bereaved family in case the insured pass away as well as fostering life insurance industry to vitalize economy and create job opportunities, our national insurance policy provides the tax preference with insurance payment exclusions from total amount of inheritance. This tax preference, which comes from payment exclusions stipulated in Estate and Gift Tax Act and Insurance Act, however, is abused by someone with ulterior motives. They take advantage of a single premium to gain the benefit by inheritance tax avoidance, leading to a loss to our national treasury taxes. Seemingly being aware of this loophole in the law, our government stipulated a maximum for the insurance payment which can be excluded from the basic income per household in Income Basic Tax Act, in order to narrow down the tax preference resulting from insurance payment exclusions from total amount of inheritance. Besides, whether taxpayers perpetrate tax avoidance will be judged by the interpretation from Ministry of Finance, and they may be instructed to pay off the tax as well as penalized according to Substance over Form Principle. On the foundation of tax preference with life insurance payment exclusions from total amount of inheritance, this paper tried to explore facts finding and laws interpretation upon Tax Collection Act, as well as differences among tax avoidance, saving and evasion. This paper also explored the legitimacy of current regulations and court decisions through practical cases. From the viewpoint of the rule of law, a legislative proposal was put forward in the conclusion of this paper, basing on the regard for tax preference related with life insurance delivered by legislators and considering the spirit of equality (Article 7), right of property protection (Article 15) and Principle of Taxation under the Law (Article 19) in Constitution. It is hoped to solve the issues of inheritance tax avoidance employing life insurance, also bring a flourishing development to our country’s taxation systems in life insurance and inheritance.