營利事業所得之盈虧互抵爭議研究

Abstract

盈虧互抵制度作為所得稅制中反映納稅義務人實質負擔稅負能力以及公平課稅原則的重要機制，其適用不僅攸關實際經濟能力之合理性，更關係國家稅收與企業經營環境之平衡。我國盈虧不得互抵自所得稅發布以來，一直為立法者視為原則而非納稅義務人之基本權，僅可在符合但書的情況下方可適用。因而本研究著重在盈虧不得互抵之正當性。 本文研究分為四大架構：我國盈虧互抵立法沿革、同一納稅主體的跨年度盈虧互抵、跨納稅主體合併申報盈虧互抵，以及盈虧互抵實務爭議分析與檢討。由於盈虧互抵之條文出現甚早，因此需要先了解該條文之立法歷程，方能知悉盈虧原則上不得互抵之原則是否為立法者蓄意之安排。爾後，再介紹財務會計與稅務會計之財稅差異，對於同一納稅主體跨年度盈虧互抵以及跨納稅主體合併申報盈虧互抵之影響，以凸顯盈虧不得互抵原則之不合理。最後精選四種盈虧互抵的爭議並進行檢討。 盈虧互抵的爭議為長久以來的問題，當稽徵機關與納稅義務人雙方在見解上有分歧時，便會進一步進入訴訟程序來解決爭議。惡法亦法，若以所得稅法第39條歷年盈虧不得以互抵的原則，在本質上就是〝對於納稅義務人基本權的侵害〞，則該法條則不具正當性，因此本文結論建議應修改所得稅法第39條，關於以往年度營業之虧損，在原則上即適用盈虧互抵。一方面符合企業永續經營原則之常態，一方面稽徵機關可合理核定盈虧互抵金額，減少租稅爭議及訴訟之成本。

As an important mechanism in income tax that reflects the taxpayer's actual ability to bear the burden of tax and the principle of fair taxation, the application of the profit and loss offset system is not only related to the rationality of the actual economic capacity, but also to the balance between the national taxation and the business environment of enterprises. Since the promulgation of the income tax, the principle of non-offsetting of profits and losses in Taiwan has always been treated by the legislators as a principle rather than a basic right of the taxpayer, and it can only be applied when the proviso is met. Therefore, this study focuses on the legitimacy of non-offsetting of profits and losses. This research is structured into four sections: (1) the legislative history of Taiwan’s loss carryforward and offsetting provisions; (2) intertemporal loss offsetting within the same taxpayer entity; (3) consolidated loss offsetting across multiple taxpayer entities; and (4) practical disputes and critical reviews concerning the application of loss offsetting. Since the legal provisions concerning loss offsetting were introduced early in Taiwan’s tax legislation, it is necessary to first trace their legislative development to determine whether the principle of non-offsetting was a deliberate and intentional design by lawmakers. Subsequently, this study examines the conceptual and functional differences between financial accounting and tax accounting, and analyzes how these differences affect both intertemporal and inter-entity loss offsetting. Through this analysis, the irrationality of the general non-offsetting rule is made evident. The study concludes by selecting and reviewing four representative types of disputes related to loss offsetting for critical discussion. Disputes regarding loss offsetting have long been a contentious issue. When differences in interpretation arise between tax authorities and taxpayers, litigation often becomes necessary to resolve the matter. However, if the current rule under Article 39 of the Income Tax Act—which prohibits loss offsetting—is inherently a violation of taxpayers’ fundamental rights, then such a provision lacks legitimacy. This study, therefore, concludes with a recommendation to amend Article 39 of the Income Tax Act, such that prior-year business losses shall, as a rule, be eligible for offsetting against future profits. This recommendation not only aligns with the principle of sustainable business operations but also enables tax authorities to reasonably assess deductible loss amounts, thereby reducing tax disputes and the cost of remedies for taxpayers.