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  • Interpretation
  • No.700【Case concerning Unreported Business and Underreported Business Tax Penalties Principle of Taxation by Law】
  • Date
  • 2012/06/29
  • Issue
    • Is it unconstitutional to determinethe evaded taxamount without permittingtax deduction by providing certification for input tax after an investigation confirms that the business amount is not reported or under-reported?
  • Holding
    •        Illustration 3 of the Ministry of Finance letter of - October 19, 2000, No. 890457254, Article 52 Paragraph 2 Subparagraph 1 of the Enforcement Rules for the Business Tax Act (revisions promulgated on June 7, 2000) regarding the determination of unreported taxable income under Article 51 Paragraph 1 of the Business Tax Act (revisions promulgated on August 2, 1995, effective on September 1, 1995) is consistent with Article 15 Paragraph 1, Article 33, Article 35 Paragraph 1, Article 43 Paragraph 1 Subparagraph 3, and Article 51 Paragraph 1 of the Business Tax Act and does not contravene the principle of taxation by law derived from Article 19 of the Constitution.
  • Reasoning
    •        Article 19 of the Constitution regulates that people shall have the duty of paying taxes in accordance with law. The Constitution stipulates that when the state imposes the duty to pay tax upon people or gives people tax benefits, there shall be a statutory basis which prescribes the elements of taxation such as the subject of taxation, the object of taxation, the relationship delineating how the object of taxation belongs to the subject of taxation, the tax basis, and the tax rate. However, because it is actually impossible to set out all technical and detail matters in the laws, it is necessary that further specifications be set out in administrative ordinances.  Therefore, a competent authority has the right to interpret relevant laws. As So long as the interpretation is conducted in accordance with the legislative purposes of the respective laws, the economic purposes of taxation, and the principle of fairness under substantive taxation, there is no violation of the principle of taxation by law (see J. Y. Interpretations No. 420, 460, 496, 519, 597 and 625).
      
    •        The Business Tax Act, which was amended and promulgated on August 2, 1995 and became effective on September 1, 1995, was renamed as the Value-Added and Non-Value-Added Business Tax Act on July 9, 2001 (hereafter, the Business Tax Act). Article 51 (revised on December 8, 2010 to reduce the statutory penalty, Paragraph 2 was added on January 26, 2011) Subparagraph 1 of the Business Tax Act states that “the taxpayer shall be pursued for payment of taxes owed and be fined according to the amount of tax evaded, if the taxpayer conducts business without application for business registration as required.”According to Article 52 Paragraph 2 Subparagraph 1 of the Enforcement Rules for the Business Tax Act, revised and promulgated on June 7, 2000 and later renamed as the Enforcement Rules for the Value-Added and Non-Value-Added Business Tax Act promulgated on October 17, 2001 (hereafter, Enforcement Rules for the Business Tax Act), the definition of “evaded tax amount” means “the additional tax amount that needs to be paid, as determined by the competent tax levying agency based on all the investigation documents” (on June 22, 2011revised as “the additional tax amount that needs to be paid, as determined by the competent tax levying agency based on all the investigation documents, including the input tax application regulated in Article 35 and not falling under Article 19, and the input tax calculated  in accordance with Article 15 Paragraph1 Subparagraph 2 of the Enforcement Rules for the Business Tax Act ”). As the competent tax levying agency, the Ministry of Finance has previously specified the amount of tax evaded and later issued a letter on October 19, 2000 No. 890457254 stating in illustration 3: “In accordance with Article 35 Paragraph 1 of the Business Tax Act, regardless of whether any sales amount is accrued, a business operator must file periodic tax returns to the competent tax levying agency concerning its sales amount, tax owed, or overpayment, with tax deduction and other related documents attached. In doing so, the deductible or refundable input value-added taxes of the business operator should be premised on the fact that they are reported.  Therefore, in the event that a business operator should be held in violation of Article 51, Sections 1 to 4 and Section 6 of the Business Tax Act and subject to penalties accordingly, but a business operator provides valid input certificate only after being investigated and discovered, no output tax amount may be deducted by the tax levying agency in calculating the tax shortage.”Based on the letter, the deductible amount for input tax is limited to what the taxpayer has reported in accordance with Article 35 Paragraph 1 of the Business Tax Act.  With regard to the determination of unreported taxable income under Article 51 Section 3 of the Business Tax Act, it is already stated in J. Y. Interpretation No. 660that there is no violation of the principle of taxation by law under Article 19 of the Constitution.  However, whether the part of this letter concerning Article 5 Section 1 of the Business Tax Act (hereafter, the disputed letter) violates the constitution, lies not within the scope of J. Y. interpretation No. 660, but should be interpreted on the basis of this case.
      
    •        Pursuant to Articles 14, 15, 16, 19, 33 and 35 of the Business Tax Act, the amount of value-added tax is calculated by the difference between the amounts of periodically filed sales and the input taxes evidenced by the detailed chart of the uniform invoices. Based on this calculation, the amount of business tax due or overpaid in the given period is thus determined (see Judicial Yuan Interpretation No. 685).  In addition, the “input tax amount” that is deductible from the output tax in the same period under Article 15 Section 1 of the Business Tax Act is premised on the condition that the registered business operator has obtained the valid certification stipulated under Article 33 of the Business Tax Act and has attached that certification with the filing for deduction to the competent tax levying agency within the registration period, based on which the business tax owed or overpaid in the same period is calculated (see Judicial Yuan Interpretation No. 660). Therefore, a business operator doing business without legal business registration, unless he makes up the business registration and pays business tax before an investigation of the competent tax levying agency, may apply Article 48-1, Paragraph 1 of the Tax Collection Act. Except in the event of a sanction under Article 51 Section 1 of the Business Tax Act, where following an investigation of the competent levying agency it is found that the obligation to file periodic reports has not been performed and income  tax is reported only after discovery. The requirements of the abovementioned regulations for deductible output tax are not met.
      
    •        As to a business operator, who has not applied for business registration in accordance with the regulations, the disputed letter integrates Article 15 Paragraph 1, Article 33, Article 35 Paragraph 1, Article 43 Paragraph 1 Subparagraph 3 and Article 51 Subparagraph 1 of the Business Tax Act, as well as Article 29, Article 52 Paragraph 2 Subparagraph 1 of the Enforcement Rules for the Business Tax Act by stipulating that  only those who have obtained legal certification for input tax and filed an application within the prescribed period may deduct output tax.  This is in line with the periodical imposition of value-added business taxes and automatically fulfills the overall legislative purposes of the Business Tax Act.  Moreover, there is no conflict with the duty of assisting legal enforcement, the economic meaning of transferring business tax from the business operator to the consumer and the principle of fairness under substantive taxation.  Giving business operators who do not fulfill the duty to act in concert the same legal status as those who act in accordance with law would destroy the foundation of value-added business tax registration and declaration system.   The disputed letter at issue  stipulating that the amount of payable tax should be the amount of evaded tax, as determined based on above regulations following an investigation of the competent tax levying agency, and be used for calculating the tax evasion fine  which does not increase a business operator’s legal obligations and does not contravene the principle of taxation by law under Article 19 of the Constitution.
      
    •        In the present case, one petitioner claimed that Article 33 of the Business Tax Act, indicating that a business operator regardless of whether he has or has not registered properly, he is required to provide evidence of name, address and uniform serial number when applying to deduct input tax from output tax, is in contravention of the principle of equality under Article 7 of the Constitution and the principle of proportionality under Article 23 of the Constitution; Ministry of Finance letter of October 19, 2000, No. -890457254, would violate the constitution, hence the petitioner filed for judicial interpretation.  However, given that the petitioner has failed to specifically indicate how Article 33 of the Business Tax Act objectively contravenes the Constitution and the above-mentioned Ministry of Finance letter is the response to an individual case, not a legal directive, the requirements for a judicial interpretation are not met. Based on Article 5 Section 1 Paragraph 2 and Section 3 of the Constitutional Interpretation Procedure Act, this part of the petition shall therefore not be reviewed.
      
    • ______________________
      
    • *Translated by Lawrence L Lee
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