In the case where the taxpayer is to be punished when violating the duty to act, it is only required that such taxpayer shall be fined for noncompliance with the duty to act. Where the taxpayer is to be punished for tax evasion, it is essential that the legal perquisites of the tax evasion facts be met. Although the purpose and requirements of the above two are different, there cannot be double punishment by various measures and means unless such act complies with the requirements of both of the above and the difference in the punitive measures and means is necessary to achieve the purpose of the administration, which is the fundamental principle of a modern democratic state governed by the rule of law (Rechtsstaat). Therefore, when violation of such duty to act simultaneously constitutes a part of the tax evasion act or such kind of punishment is equivalent to that of such tax evasion act, if imposition of the most severe of the prescribed punishments will achieve the purpose of the administration, there shall not be further punishment so as to be consistent with the intent of the Constitution to protect the rights of the people. J.Y. Interpretation No. 356 shall accordingly be appended.

       A party filed a petition requesting supplemental interpretation owing to an ambiguity arising from the application of the Judicial Interpretation regarding the final binding judgment. At this petition at bar concerning a business tax matter, the petitioner’s case has been adjudicated in a final and binding judgment by the Administrative Court that applied Interpretation No. 356 so as to render a final and binding judgment. However, such Interpretation does not clearly explain whether the punishments should be combinable or the most severe of the prescribed punishments should be imposed when the taxpayer violates the duty to act and commits tax evasion; therefore, a petition requesting supplemental interpretation initially has justifiable ground.

       If an act in violation of taxation duty involves several penalties, whether those penalties can be imposed on such act jointly, the result will be different depending upon the manner of such act, and the classification and purpose of punishment; needless to say, a taxpayer can receive combinable punishments in the event that the results of the punishments should vary when numerous acts have de facto violated several articles. Nevertheless, an act by the taxpayer may meet both the requirements of the violation of the duty to act and the act of tax evasion; for example, a business entity does not report or underreports a sales amount owing to failure to turn over the documentary evidence to the relevant authority. When it is a matter of the punishment for the breach of the duty to act and that of the act of tax evasion regarding the above, the purposes and the requirements of the punishments are different; the former punishes the breach of the duty to act, while the latter punishes the tax evasion that meet with the legal perquisites of punishment. This is apart from the fact that applying different means to punish in combination is necessary to achieve the purpose of the administration, in case the nature and classification of the two are different; for example, one may be a fine, the other a confiscation, or one may be a fine, the other a suspension of business, etc. There cannot be double punishment, which would be contrary to the fundamental principle of a modern democratic state governed by the rule of law (Rechtsstaat). Hence, when violation of such duty to act simultaneously constitutes a part of the tax evasion or the punishment is equivalent to that of such tax evasion conduct, if imposition of the most severe of the prescribed punishments will be able to achieve the purpose of the administration, other acts shall not be punished so as to be consistent with the intent of the Constitution to protect the rights of the people. Although Interpretation No. 356 held that the taxpayer should be punished for breaching the duty to act, punishment of such conduct shall be distinguished from the penalty for tax evasion. Said Interpretation only distinguished between the nature of those two, but did not intend that the punishments should be combined simultaneously in every instance. The intent of such Interpretation shall be applied and construed on a case-by-case basis. Accordingly, J.Y. Interpretation No. 356 shall be appended as mentioned above.  

*Translated by Professor Fuldien Li.