The petitioner petitions on the ground of the possible unconstitutionality of the administrative decision based on the Ruling Number 1000 rendered by the Highest Administrative Court (hereinafter referred to as the affirmed final decision) on applying the Judicial Interpretation to Paragraph 2, Section 1 of Article 6 of the Rules Regarding the Standards on the Deduction of Penalty on the Cases of Tax Violations issued by the Ministry of Finance on the 20th of June for the year of 2002 which provides that 「Penalty with fines imposed under Paragraph 1 of Article 114 of the Income Tax Law could either be lessened or exempted in the following cases …..2. A tax withholder who has paid up subsequently in full his tax withholding duty on the insufficient withholding yet fails to file to the tax authority the report of the tax withholding certificate prior to the relative due date shall be subject to a penalty of 1.5 fold of the insufficient amount if such report is made before the ruling of penalty is rendered.」 (Hereinafter referred to as the disputed clause which has been subsequently abolished on the 27th of May of 2011). An affirmed final decision, though not in direct reference to the disputed clause, should be viewed as applying such clause in its essence and could be subjected to a constitutional interpretation if the legal opinion held could be judged as forming partial basis of the decision (Referring to the Judicial Interpretations of Numbers 399, 582, 622, 675 and 698 by the Judicial Yuan).
The damages caused to the national revenues and the maintenance on the public interest in the tax system by the violations of tax withholders on the tax withholding duty vary in great degree from those on the reporting duty of the tax withholding certificate. If a tax withholder who has paid up subsequently in full his tax duty on the insufficient withholding yet only fails to file to the tax authority the report on the tax withholding certificates prior to the relative due date, the damages incurred by such late payment for withholding duty, though affecting the control of the data regarding tax liability and the taxpayer’s tax return filing managed by the Revenue Services, are of less severity than that caused by those who never pay tax duty on withholdings. The fact that the penalty imposed by the disputed clause for the late full payment by a tax withholder prior to the administrative ruling of penalty is rendered on the exacting of the same fine of 1.5 fold of the amount of insufficient withholding as that in Paragraph 3, Section 1 of Article 6 of the same Rule has denied discretion by the Revenue Service on the amount of fines estimated according to the merit of each individual case, obviously exceeding the necessary extent and remaining in inconsistency with the proportionality principle under Article 23 of the Constitution and Article 15 protecting the people’s property rights and shall be inapplicable since the date of announcement of this Judicial Interpretation. It should also be pointed out that all concerned authorities shall give a proper decision according to the Proportionality Principle and Article 48-3 of the Tax Exacting Law by considering the weight of each individual case where a tax withholder who has paid up subsequently in full his tax withholding liability yet fails to file the report to the tax authority of withholding certificates prior to a ruling of penalty is given.
The petitioner also petitions on the reason of possible violation of the Constitution for the interpretation of Paragraph 11 of Article 8 of the Income Tax Law: 「The R.O.C. source of income means the income from the following ….11. Other income procured within the territory of the R.O.C. 」. Such definition of the term 「the R.O.C. source of income」does not necessarily violate any part of the Constitution except the blurry meaning which is inconsistent with the definitive nature required by law. As to the claim on the violation of equality, the petitioner argues that the inappropriateness on the legal opinion held by the affirmed final decision that the payment to a foreign organization on satellite transmission is 「the R.O.C. source of income」, which should be pointed out, in our judgment, as falling into the domain of the court in admitting of facts and application of laws, thus accordingly staying outside the scope of Paragraph 2, Section 1 of Article 5 of the Rules on the Review of Cases by the Grand Justices of Judicial Yuan and therefore should be dismissed according to Section 3 of the same Article.
______________________
＊ Translated by Chia-chieh CHENG