A STUDY ON TAX AVOIDANCE –ITS ADJUSTMENT AND JUSTIFICATION OF PENALTY

• Main Authors: Yi-Che,Su, 蘇逸哲
• Other Authors: 劉建宏
• Format: Others
• Language: zh-TW
• Published: 2010
• Online Access: http://ndltd.ncl.edu.tw/handle/62865141339475181081

碩士 === 國立中正大學 === 法律學研究所 === 99 === Tax, as a debt under public law, does not require corresponding payment from the government, nor does it give immediate and corresponding benefits to taxpayers, hence it induces incentive for tax savings, tax avoidances and tax evasion; further, owing to its common recompense, it functions as an instrument for wealth redistribution. It follows that people are requested to pay tax only as the law stipulates, and if by some roundabout ways, either by private freedom or right abuse, a legal behavior is materizied, it is called in this study tax avoidance. Normally public laws follow private law in priority, but this does not mean that, to protect personal freedom, we have to always put top priority on civil laws in interpretations of laws; under valuation of the Constitution, public laws and private laws are on equal ground. When both laws have stipulations on a economic behavior, it is true that priority goes to private laws, this, however, is a matter of timing order, mot a matter of evaluation order. Further, the right of property, as a social obligation, has its limit of freedom imposed by the Constitution; beyond this limit, it becomes an abuse of private law freedom. When this happens, can tax be levied, disregard restrictions of private laws？This would be a worthwhile study. In current practice, tax avoidance is often confused with tax saving or tax evasion. In this study, we distinguish simple tax avoidance from quasi-tax avoidance, so that tax avoidance won’t be tax evasion in disguise, and tax saving won’t go astray to tax evasion. We make it clear that abuse of right, if not discovered, might evade taxation, but when fraud is found and not justified, is liable to criminal or administrative penalties. In our opinion, quasi-tax avoidance, due to falsehood, is de facto tax evasion, and not tax avoidance; hence criminal or administrative penalties are justified. Simple tax avoidance, if with no intention and negligence to hide facts or evade taw, is simply a matter of abuse of rights. Tax should be duly levied, but administrative penalties are not justified, otherwise it may lead to infiltration of self-domination of private laws, and violation of principles of clear penalties and forbiddances of unfavorable analogy.