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  • Interpretation
  • No.655
  • Date
  • 2009/02/20
  • Issue
    • Is Article 2, Paragraph 2 of the Certified Public Bookkeepers Act, as amended on July 11, 2007, in violation of the Constitution?
  • Holding
    •     Certified public bookkeepers are professionals. Their qualification for practice shall be obtained through examinations administered by the Examination Yuan in accordance with Article 86, Section 2 of the Constitution.  Article 2, Paragraph 2 of the Certified Public Bookkeepers Act, which enables bookkeeping and tax filing agents not otherwise qualified through examinations administered by the Examination Yuan to obtain the same qualification as certified public bookkeepers, contradicts the meaning and purpose of the above-stated provision of the Constitution and shall be invalid as of the date this Interpretation is issued.
  • Reasoning
    •     Article 86, Section 2 of the Constitution provides that qualification for practice in specialized professions and as technicians shall be determined through examinations administered by the Examination Yuan.  Based upon the above provision, members of the specialized professions are qualified only by passing examinations administered by the Examination Yuan.  Article 2 of the Professionals and Technicians Examinations Act also expressly stipulates, “Professionals and Technicians hereof refer to those who can practice in a certain profession only after passing examinations and are bestowed with certificates in accordance with the laws and regulations; the classification of examinations shall be determined by the Examination Yuan.”  Moreover, in accordance with Article 2, Paragraph 2 of the Business Accounting Act, persons in charge of business accounting affairs mean those who are engaged in the identification, measurement, recordation, classification, compilation, and preparation of financial statements accordingly.  They must possess certain level of professional knowledge and experiences in accounting to be charged with such responsibility.  Thus, they are a kind of professionals as illustrated in J. Y. Interpretation No. 453.
      
    •     Article 2 of the Certified Public Bookkeepers Act, promulgated on June 2, 2004 (as amended on July 11, 2007 to be re-numbered as Paragraph 1 in light of the addition of paragraph 2), provides that, “Nationals of the Republic of China who pass the certified public bookkeeper examination and bestowed with the qualification certificates in accordance with this Act may serve as certified public bookkeepers.” Article 13, Paragraph 1 further stipulates that, “Certified public bookkeepers may, in their registered districts, engage in the practice of the following businesses: 1. Act as agents for the registration and recordation of business operation, alteration, cancellation, suspension, resumption and others matters; 2. Act as agents for tax filing and applications; 3. Provide tax consulting services; 4. Act as agents for business accounting matters; 5. Other services related to bookkeeping and tax filing as approved by the governing authority.”  Accordingly, the statutory scope for certified public bookkeepers to practise entails to act as agents for business accounting matters, business registration, tax filing, tax consultation, and other services related to bookkeeping and tax filing as approved by the governing authority, which is obviously broader than the scope of business accounting matters stipulated in Article 2, Paragraph 2 of the Business Accounting Act, and has a greater bearing on not only an individual taxpayer’s property rights and tax duties but also the public interests of national tax revenues and the management of industry and commerce.  Therefore, certified public bookkeepers are a kind of specialized professionals who must be licensed to practice through examinations so as to comply with the meaning and purpose of Article 86, Section 2 of the Constitution.
      
    •     On July 11, 2007, the Certified Public Bookkeepers Act was amended by adding Article 2, Paragraph 2: “Anyone issued a practice registration certificate as a bookkeeping and tax filing agent may convert that certificate to Certified Public Bookkeeper certificate and serve as a certified public bookkeeper in accordance with Article 35 hereof.” (hereinafter “disputed provision”)  Further, Article 35, Paragraph 1 of that Act provides: “Those who have engaged in bookkeeping and tax filing agent business for at least three years before the implementation of this Act and have duly reported business income, may register to continue such practice as of the date this Act is implemented, provided, however, at least 24 hours of related professional training shall be accrued each year.”  Therefore, the disputed provision entitles bookkeeping and tax filing agents not otherwise qualified through examinations as certified public bookkeepers to summarily acquire, by converting certificates, the same status as certified public bookkeepers licensed through examinations.  However, with those bookkeeping and tax filing agents not licensed through examinations practice in the same name and status as certified public bookkeepers, without their professional knowledge being examined, may not only result in consumers having difficulties to distinguish their differences and to safeguard their interests, but also being unfair to certified public bookkeepers licensed through examinations.  Hence, the disputed provision obviously contradicts the meaning and purpose of Article 86, Section 2 of the Constitution and shall become null and void as of the date this Interpretation is issued.
      
    •     Although Article 35 of the Certified Public Bookkeepers Act is related to the disputed provision, it is not the subject matter for this Interpretation and should be reviewed separately concerning its constitutionality.  It should be pointed out that, the said Article 35 concerning those who have already engaged in bookkeeping and tax filing agent business may continue to practice as such is not within the scope of this Interpretation.
      
    • Translated by Chun-yih Cheng and Pei-chen Tsai. 
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