| Summary: | 碩士 === 國立高雄大學 === 法律學系碩士班 === 104 === Article 28 of Tax Collection Act have become a statutory basis that tax collectors apply to inspect tax-refunding event, since legislated and promulgated from 1976. Until 2009 in Taiwan, because of a famous lawyer’s refunding event for overpaid House Tax, Article 28 can be different contents to explain again it’s important position in the field of claiming to return unjust enrichment in tax law. Article 28 not only maintains the regulations about the event that a taxpayer has made overpayment of any tax as a result of mis-application of tax law or mis-calculation 「by him or herself」, but also leads into the concept with regard to reopening of administrative proceedings, claiming for the tax collection authorities actively refund the overpaid tax caused by any mistakes that can be attributed to government agencies. It discloses the fact government agencies can legally possess the unjust property which is over 5 years from the date of payment because of self-mistakes. It may be said that Article 28 specifically implements the regulations of protection of taxpayers’ right, and helpfully promotes the guarantee of tax human right.
From the viewpoint of the basis about substantive claim, Article 28 of Tax Collection Act which originates from the concept and connotation of unjust enrichment in public law with regard to unwritten law is a specific regulation of unjust enrichment in tax law. Before Article 28 was amended, there had been some disputes about that the constitutive elements of Article 28 are too brief and indefinite. After Article 28 was amended, it has had different lawful effects and ways to exercise of right depend on the element about attributing mistakes to taxpayers or government agencies. For this reason, the judgement on constitutive elements of amended Article 28 becomes more important in tax collection practice when tax collectors inspect the substantive claim concerning tax-refunding event because of mistakes.
From the perspective of reopening of tax collection proceedings, in opposition to action for retrial of Administrative Litigation Act , Article117 and Article 128 of Administrative Procedure Act etc., dose Article 28 of Tax Collection Act also possess the same statutory function and objective? If the answer is yes, then we should ask that what is the boundary of reopening of tax collection proceedings? The stage of administrative disposition done, or the stage of recheck, administrative appeals, administrative litigation that is made? If the answer is no, for the inspection concerning refund of overpaid tax event because of mistakes, should we first apply Administrative Procedure Act to reopen tax collection procedures, then get into substantive inspection again to determine that is there any tax overpayment because of mistakes finally? For clearing up the above questions, this research combines tax collection procedures with procedures for administrative remedies to wholly observe, and it is helpful to accurately determine procedural objects which apply to Article 28 of Tax Collection Act in tax collection practice.
The refund for overpaid tax as a result of mistakes that can be attributed to government agencies is not restricted within 5 years, and such overpayment that had been made before this Article was amended and became effective, the amended regulation shall be applied. It looks like removal of statute of limitations about exercising right, and the main purpose are promotion of correctness and legality about tax determination and protection of taxpayers’ rights and interests. But because evidential material on tax determination is not preserved permanently in current practice of tax collection, and evidence has the characteristic that it could become blurred as time went on, that greatly influences and tests the tax collection authorities on facts investigating. Furthermore, for the event concerning that the truth of overpaid tax because of mistakes is still not clear after investigating, it is necessary to discuss whether the tax collection authorities and taxpayers reach an agreement on constitutive and elementary facts about refunding tax by tax administrative compromising contract or not.
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