| Abstract: | 遺產稅係富人稅，大部分的遺產及贈與稅集中於少數富人繳納，因稅捐係無償取得，對納稅義務人而言，不免產生痛苦感，致少數納稅義務人抱持避稅心態，因具有租稅規劃之誘因，遂利用私法安排，以規避稅賦，當稅捐之核課處分與納稅義務人認知及期望存有落差時，在法治國家其自得提起租稅救濟的權利，惟復查、訴願乃屬於行政機關的救濟體系，在徵納雙方皆堅持自己的看法時，最終還是要依賴於行政體系外以人民為中心之司法裁判。
本研究透過臺北高等行政法院判決的蒐集，針對稽徵機關以擬制贈與及實質課稅原則，作出之遺產及贈與稅課稅處分而提起行政訴訟案件，經行政法院判決之實質課稅、視同贈與、借名登記、三角移轉、躉繳保費等案件以內容分析法進行研究，並針對個案內容，納稅義務人、稽徵機關所持見解及行政法院所為之判決作探討，目的在提供實務界及訴訟代理人參考，以減少訟源及徵納雙方之訴訟成本。
本文末對如何疏減訟源提出建議，諸如：財政部訴願會應有專人對行政訴訟結果作歸納分析;定期通報稽徵機關就撤銷案件作檢討改進，及對法令適用疑義通盤檢討修正。另就納稅義務人敗訴案件適時發出新聞稿，作為納稅義務人及訴訟代理人稅捐規劃之參考，以達稅務資訊公開。建議行政法院成立稅務專門法庭，提昇法官的專業涵養，保障納稅義務人權利及維護稅捐之公平正義，亦可減少訟源。
The inheritance tax is to tax the rich, most estate and gift tax concentrated in a few rich people to pay, due to taxes are free obtaining, a sense of pain for the taxpayer is inevitable, caused a small number of taxpayers have a mind of avoiding tax. And, since the incentives of tax planning, they use private arrangements to circumvent tax. When the assessment disposition exists gap with acknowledge and expectation of taxpayer. They have the rights to bring tax relief in the rule of law, but review and appeal are the relief system of administrative organ, in the state of both levied parties stick to their own opinion, ultimately still depends on the system outside administrative system--the people-centered judicial adjudication.
The research through the collection of rulings by the Taipei High Administrative Court, aims at the case of estate and gift tax, the tax authorities made taxable disposition by means of gift and substantive principles of taxation, brought administrative litigation and judged real tax, treated as a gift, by registered, triangular transfer, like premium…etc. via the administrative court, to study and to do content analysis; also, to make discussion on case contents, views of taxpayers and tax authorities and the ruling of the administrative court for practitioners and litigation agents’ reference; to reduce litigation source and to reduce both levied litigation costs.
In end of this article made recommendations on how to reduce litigation source, such as: The Ministry of Appeal Council should have someone to summarize and analyze the outcome of administrative proceedings; regularly inform the tax authority to review and improve the dismissed case, and to overall review and amendment the doubt of the Act applies. Also, press releasing the losing case of taxpayer timely for taxpayer and legal representatives’ tax planning reference, to achieve tax information openly. Besides, recommended administrative court to establish a professional court to enhance the professional ability of judges, to protect the rights of taxpayer and to maintain the fairness and justice of tax, also can help to reduce litigation. |
