| Summary: | 碩士 === 國立中正大學 === 法律所 === 98 === The Ministry of Finance frequently promulgate interpretative rules in relation to the tax law for sake of convenience to subordinate collection bureau in unified and impartial application of tax law provisions and in enforcement of taxation matters and avoidance of occurrence of contradictory administrative practices. The large quantity and complex contents of such rules could not be unmatched by those rendered by other administrative bureaus. In addition, Article 1-1 of the Tax Collection Act was discussed and passed in haste without full consultation and advice during the legislation procedures, and disputes thus arise for applying such article between theory and practice in consequence. It has been 14 years since the effectiveness of such amendment and the administrative claim cases filed by tax payers who allege this Article shall be applied are increasing and various doubts arising from the interpretative rules are pending resolution. This essay is aimed to extend analysis on the practice operation of the particular case with the judgement by administrative court of all instances and lodge opinions based on the discrepancies of application in the theory and the practice.
Further, after the interpretative rules of tax law was declared in violation of the constitution by the Grand Justice , the Ministry of Finance continued holding that such rules were still effective when verifying and imposing administrative penalty on ground that the interpretative rules shall be null and invalid since the date of publishing the Justice’s interpretation, the collection bureau at the material time had no fault for application of the effective law in tax collection; also, even if Article 1-1 of the Tax Collection Act was in favor of the tax payer, the application for taxation refund shall be limited to the case pending verification and collection and the determined cases would not be changed any more, in result of which the tax payer’s application in pursuant to Article 28-2 of Tax Collection Act was overruled and disputes were thus incurred. This essay, with reference to Judicial Yuan Interpretation No.661, probe into the legitimacy of restriction against taxation refund for the determined cases and extend opinions in connection with the adoption of Article 1-1 and Article 28 of the Tax Collection Act.
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