A Study on Restriction from Leaving the ROC in Taxation Safeguard

• Main Authors: Yi-HsuanSung, 宋怡宣
• Other Authors: Ke-Chung Ko
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/wqmpc3

碩士 === 國立成功大學 === 法律學系 === 104 === SUMMARY The main purpose of this study is researching the restriction from leaving the ROC in taxation safeguard, and it tries to analyse those controversies and to find better solutions. Restriction from leaving the ROC was originally promulgated in 1967, and it shouldered both good and bad evaluations so far. The thread of thought begins at The Constitution. It expounds the significance of this statute, intervention in fundamental rights, and balance between individual and public. Due to variety tax arrears situations, this study shows a different cogitation in principle of proportionality. Fiscal and tax law is a standard in taxation, and it shall have consistency in legal elements and legal effect. However, the regulation of restriction from leaving the ROC can be found both in Tax Collection Law and in Administrative Execution Act, and each of them has different legal elements, including amount of arrears and consideration of subjective intention. This phenomenon results in repetition of taxation safeguard, disorder of administrative remedy, extension of limitation period and so on. Although the new implementation directions of restriction from leaving the ROC begin to formulate and enforce in 2015, many contradictions still exist without being solved radically. Hence, there will be some suggestions on amending the law in the end of this study. In addition to necessity of safeguard, this statute should adjust subjective elements, define taxpayer and range clearly and clarify administrative remedy procedures. As a result, the restriction from leaving the ROC can obtain the better achievement on arrears events. INTRODUCTION Tax arrears are one of the most knotty problems in taxation, and the common and critical solution is restriction from leaving the ROC. However, lots of controversies still remain unsolved since it is drafted. This thesis starts from reviewing constitutional principles in chapter 2. As we all know, paying taxes is one of national obligations stipulated in Article 19 of The Constitution, but the justification is not assured when fundamental rights are limited under national administrative operation. On the one hand, public affairs require every citizen’s equal expenditure, and it will not only impact exchequer but also increase other tax payers’ burden when some people refuse to fulfil this obligation. On the other hand, it may not so appropriate to use any methods to ensure completion of national taxation. Therefore, according to due process of law, principle of legal reservation and principle of proportionality, this study analyses whether the restriction from leaving the ROC corresponds with the constitutional commandments. In fact, fundamental rights protection is not the only problem in this statute, repeated regulation is another one that should be solved. This study tries to elaborate the regulation structure and discuss different issues in chapter 3. Restriction from leaving the ROC can be found both in Article 24, Paragraph 3 of Tax Collection Law and Article 17, Paragraph 1 of Administrative Execution Act, and each of them has different legal elements. The first issue is the consideration of subjective intention. It doesn’t contain any subjective elements in Tax Collection Law and the only criterion is amount of arrears. Administrative Execution Act contains subjective elements, yet arrears standards differ greatly in the above mentioned regulations. The second one is the results of petitions. Decisions of administrative remedy can be opposite at the same time, and it will make unnecessary waste for taxpayers in remedy procedure. Last but not least, limitation period can be improperly extended to almost ten years, which essentially violates five years maximum restriction. In short, those issues can be ascribed to inconsistency provisions. In order to pursue the better system of restriction from leaving the ROC, this thesis is committed to reconstruct restriction statute in chapter 4. Beginning at subjects, the main revise shall be clarifying the definition of subjects and ranges. In addition, subjective and objective elements need to be adjusted as well. Instead of determining the frequency of going abroad, focusing on the intention of escaping and hiding overseas is more appropriate. Distinguishing arrears levels is also doubtful. The more important thing is to generalize variety arrears situations and find suitable measures for each case. Procedures for administrative remedies and related issues are discussed in chapter 5. In Tax Collection Law, the procedure of remedy is petition and administrative litigation. There are some arguments about whether restriction from leaving the ROC is multi-stages administrative disposition, and these arguments can affect the follow-up remedy procedures. In Administrative Execution Act, however, the procedure of remedy is motion of objection. These two procedures for administrative remedies can lead to many contradictions, especially different remedy results. CONCLUSION This study researches the restriction from leaving the ROC in taxation safeguard, and some studies indicate that this statute is unable to achieve the desired results. Therefore, Article 24, Paragraph 3 of Tax Collection Law should be amended in several concepts, including defining taxpayers, emphasizing the necessity of safeguard and reducing the range of safeguard. Besides, no properties under registration, rejecting to perform and intending to escape overseas are three additional subparagraphs. Through those adjustments, the restriction from leaving the ROC can be improved and get better balance between fundamental rights and national taxes claims.