我國特種飲食業營業稅制相關之研究

Abstract

特種飲食業營業稅之前身為筵席稅，其立法意旨為抑制奢侈行為及禁止性產業發展，故以高稅率為手段而欲達寓禁於徵之行政目的。而本文以特種飲食業之歷史沿革、法學、財政學及女性主義觀點，闡述高稅率為手段，是否可達寓禁於徵之目的，抑或是侵害人民憲法權利。 我國舊制營業稅按營業總額課徵之方式，於1985年第15次修正營業稅法改採以加值額(Value Added)為稅基的課徵方式，而特種飲食業營業稅制屬非加值體系營業稅制，其以高稅率、進項稅額無法扣抵銷項稅額並核課娛樂稅方式增加營業人營業成本而達寓禁於徵行政目的。惟目前臺灣社經發展其奢侈行為如何界定，為何惟獨特種飲食業與奢侈行為畫上等號，而其他精品產業、珠寶產業、、、等就不須核課奢侈稅，有違租稅中立原則。 本研究首先蒐集國內相關之專書、期刊及研究論文等資料，針對研究主題之稅率妥適性為主，並就臺灣目前社經發展與社會環境、該條文之立法意旨、租稅課徵理論、女性主義觀點及目前稽徵實務核課情形、、、等方面，評析該稅制自1980年實行至今其是否真正達到該寓禁於徵的效果，抑或造成更不合理的情形？以期能設計出一套誘因機制使經營特種飲食業的非法業者能合法登記，讓該產業不再成為毒品及色情的溫床，並使該稅制的課徵更能符合租稅理論、節省稽徵成本、促進政府行政效率，也冀望課稅不應違反性別主流化及妨礙藝文活動的發展。

The business tax of special food and beverage services enterprises originates from the entertainment tax. Based on the legislative intent of restraining extravagance and forbidding the development of sex industry, it aims to combine the prohibition with taxation by means of high tax rates. From the viewpoints of the history of the special food and beverage services enterprises, law, finance and feminist, the thesis tries to discuss whether the purpose of combing the prohibition with taxation could be fulfilled or the constitutional right of citizens would be obstructed by way of high tax rates. The taxation of old business tax system in Taiwan depended on total business turnover. It was replaced by the taxation of value-added tax base when the Business Tax Act passed its 15th amendment in 1985. The tax system of special food and beverage services enterprises belonging to non-value-added business tax system, increases the cost of the business agents to combine the prohibition with taxation through high tax rates, the way that input tax cannot deduct output tax and taxation of the entertainment tax. However, it is difficult to define the extravagant behavior under the social and economic development in Taiwan nowadays. Also, it is questionable that only the special food and beverage services enterprises are considered as extravagant behavior while other industries of quality goods and jewelry are exempt from the entertainment tax. These seem to transgress the principle of tax neutrality. By collecting information from books, journals and papers, the study focuses on the appropriateness of tax rate. In the meantime, from the aspects of social and economic development and environment in Taiwan, the legislative intent, taxation theories, feminist and the levy practice, it comments and analyzes whether the tax rate has achieved the results of combining the prohibition with taxation since it was brought into effect from 1980, or the tax rate has caused more unfair situations. It looks forward to design a incentive mechanism to allow the illegal operators of the special food and beverage services enterprises to register legally, instead of becoming the hotbed of drugs and pornotopia, to make the levy of the tax system in more accordance with the taxation theories, to save levy cost, to enhance administrative efficiency, and it hopes the levy would not go against gender mainstreaming and hamper the policy of art and culture development as well.