重要實務
【高雄-帝謙法律事務所/土地重要實務(47)】農發條例細則等命令就非農用仍農作土地，課遺贈稅違憲。
2014.4.17 高雄律師-楊岡儒律師
發文單位：司法院
解釋字號：釋字第566號
解釋日期：民國92年9月26日
解釋爭點：農發條例細則等命令就非農用仍農作土地，課遺贈稅違憲？
資料來源：
司法院公報 第 45 卷 11 期 8-30 頁
司法周刊 第 1153 期 1 版
司法院大法官解釋（十六）（99年5月版）第 197-232 頁
考選周刊 第 935 期 3 版
法令月刊 第 54 卷 10 期 83-88 頁
總統府公報 第 6550 號 11-52 頁
法務部公報 第 316 期 66-90 頁
相關法條：
中華民國憲法 第 19、23 條 ( 36.01.01 )
土地法 第 82、83 條 ( 90.10.31 )
遺產及贈與稅法 第 17、20 條 ( 70.06.19 )
遺產及贈與稅法 第 17、20 條 ( 90.06.13 )
農業發展條例 第 3、31 條 ( 75.01.06 )
農業發展條例 第 3、38 條 ( 92.02.07 )
農業發展條例施行細則 第 21 條 ( 73.09.07 )
農業發展條例施行細則 第 2 條 ( 89.06.07 )
解釋文：
中華民國七十二年八月一日修正公布之農業發展條例第三十一條前段規定，家庭農場之農業用地，其由能自耕之繼承人繼承或承受，而繼續經營農業生產者，免徵遺產稅或贈與稅。七十三年九月七日修正發布之同條例施行細則 第二十一條後段關於「家庭農場之農業用地，不包括於繼承或贈與時已依法編定為非農業使用者在內」之規定，以及財政部七十三年十一月八日臺財稅第六二七一七號函關於「被繼承人死亡或贈與事實發生於修正農業發展條例施行細則發布施行之後者，應依該細則第二十一條規定，即凡已依法編定為非農業使用者，即不得適用 農業發展條例第三十一條及遺產及贈與稅法第十七條、第二十條規定免徵遺產稅及贈與稅」之函釋，使依法編為非農業使用之土地，於其所定之使用期限前，仍繼續為從來之農業使用者，不能適用七十五年一月六日修正公布之農業發展條例第三十一條免徵遺產稅或贈與稅之規定及函釋，均係增加法律所無之限制，違反憲法第十九條租稅法律主義，亦與憲法保障人民財產權之意旨暨法律保留原則有違，應不再適用。
理由書：
本件解釋所由生之具體事件係發生於八十二年及八十五年間，自應適用當時有效之法令。查農業發展條例於七十二年八月一日修正公布，同條例施行細則亦於七十三年九月七日修正發布，嗣同條例於七十五年一月六日雖修正公布第二條，惟同條例施行細則並未修正。從而本解釋之適用法令，自應以此為範圍，至八十九年一月二十 六日同條例之再修正及同年六月七日同條例施行細則之再修正，均非本件具體事件所適用之法令，不在本解釋之範圍，合先敘明。
憲法第十九條規定，人民有依法律納稅之義務，係指人民有依法律所定之納稅主體、稅目、稅率、納稅方法及稅捐減免等項目，負繳納稅捐之義務或享受減免稅捐之優惠，主管機關基於法律概括授權而訂定之施行細則，僅得就實施母法所定納稅義務及其要件有關之事項予以規範，不得另為增減，否則即屬違反租稅法律主義；又有關人民自由權利之限制，應以法律定之，且不得逾越必要之程度，憲法第二十三條定有明文，如立法機關授權行政機關發布命令為補充規定者，行政機關於符合立法 意旨且未逾越母法規定之限度內，亦得就執行法律有關之細節性、技術性事項以施行細則定之，惟其內容不得牴觸母法或對人民之自由權利增加法律所無之限制，迭經本院釋字第三一三號、第三六七號、第三八五號、第四一三號、第四一五號、第四五八號等解釋闡釋甚明。是租稅法律主義之目的，亦在於防止行政機關恣意以行政命令逾越母法之規定，變更納稅義務，致侵害人民權益。
七十二年八月一日修正公布之農業發展條例第三十一條前段規定：「家庭農場之農業用地﹐其由能自耕之繼承人一人繼承或承受，而繼續經營農業生產者，免徵遺產稅 或贈與稅」。農業用地經主管機關編定為非農業使用後，發生繼承之事實，依七十三年九月七日修正公布之農業發展條例施行細則之規定，不能免徵遺產稅，惟依財政部八十三年十一月二十九日臺財稅字第八三○六二五六八二號函則可按一定條件免稅，此一免稅規定於八十九年六月七日修正上開施行細則時正式予以納入。就引發本件解釋之事實而言，農業發展條例有關徵免遺產稅之規定並未修正，行政機關前後行政命令卻已實質變更納稅人之租稅負擔，此種情形難謂與租稅法律主義相符。上開條例第三十一條所稱「農業用地」，依同條例第三條第十款規定，指「供農作、森林、養殖、畜牧及與農業經營不可分離之農舍、畜禽舍、倉儲設備、曬 場、集貨場、農路、灌溉、排水及其他農用之土地」，立法者並未限定該土地須為經依法編定為一定農牧、農業用途或田、旱地目，始為農業用地，惟基於法律適用之整體性，該土地仍須以合法供農用者為限，而不包括非法使用在內。又依土地法第八十三條規定，土地經編為某種使用地之土地，於其所定之使用期限前，仍得繼續為從來之使用。故土地雖經編為非農業使用，除不得供其他用途之使用外，於所定使用期限前，仍非不得繼續為從來之使用，如其繼續經營不滿五年者，仍應追繳應納稅賦不予優惠（參照當時適用之農業發展條例第三十一條但書）。前述農業發展條例關於農業用地之認定，除該條例所作之定義性規定外，雖亦應與土地法等相 關法律規定為整體性闡釋，以定其具體適用範圍。惟若逾越此一範圍，任意擴張、縮減法律所定租稅義務或減免之要件，即非憲法第十九條規定之租稅法律主義所許，縱財政部認該條例第三十一條關於免稅要件及範圍規定過寬，影響財稅政策或有不合獎勵農業發展之原意，有修正必要，亦應循母法修正為之，殊不得任意以施 行細則或解釋性之行政規則逕加限縮其適用範圍。七十三年九月七日修正發布之農業發展條例施行細則第二十一條後段關於「家庭農場之農業用地，不包括於繼承或贈與時已依法編定為非農業使用者在內」之規定，以及財政部七十三年十一月八日臺財稅第六二七一七號函關於「被繼承人死亡或贈與事實發生於修正農業發展條例施行細則發布施行之後者，應依該細則第二十一條規定，即凡已依法編定為非農業使用者，即不得適用農業發展條例第三十一條及遺產及贈與稅法第十七條、第二十條規定免徵遺產稅及贈與稅」之函釋，對於向來作為家庭農場之農業用地，因繼承開始前或贈與事實發生前依法編為非農業使用之土地，而於繼承人死亡或贈與事實發生後，於其所定使用期限前，仍可繼續為從來之農業使用者，亦不適用當時之農業發展條例第三十一條免徵遺產稅或贈與稅之規定及函釋部分，即令符合獎勵農業發展之目的，惟其逕以命令訂定，限縮當時有效之同條例第三條第十款「農業用地」定義可適用之範圍，均為增加法律所無之限制，違反憲法第十九條租稅法律主義，亦與憲法保障人民財產權之意旨暨法律保留原則有違，應不再適用（參照本院釋字第二一○號解釋意旨）。至同條例第三條第十一款關於「耕地」之定義，係基於政策考量，僅在解釋同條例條文中有「耕地」之文字者，例如第三十條（現改為第十六條）關於耕地分割及移轉禁止之情形（現行條例另增第二十條、第二十一條、第二十二條關於耕地租賃之特別規定），自不能據該款解釋，限縮同條第十款「農業用地」之意義範圍，併此說明。
J. Y. Interpretation No. 566
Date：2003.9.26
Issue：The Agricultural Development Act provides that a successor capable of self-tilling who inherits or accepts agricultural land used as a family farm and continues to engage in agricultural production is exempt from estate tax or gift tax. However, the Enforcement Rules of said Act provide that agricultural land used as a family farm does not include land that was legally classified for non-agricultural use before it was inherited or given as a gift, and a Ministry of Finance directive further defines that where the decedent died or the fact of giving the land as a gift occurred after the Enforcement Rules of said Act became effective, no estate tax or gift tax may be exempted for such land. Do said enforcement rules and directive add restrictions that are not prescribed by law and are they thus in conflict with the Constitution?
Holding：
The Agricultural Development Act as amended on August 1, 1983, provides in Article 31, the first sentence, that a successor capable of self-tilling who inherits or accepts agricultural land being used as a family farm and continues to engage in agricultural production is exempt from estate tax or gift tax, as the case may be. However, the Enforcement Rules of said Act, as amended on September 7, 1984, provide in Article 21, the second sentence: “Agricultural land used as a family farm does not include land that was legally classified for non-agricultural use before it was inherited or given as a gift.” And the Ministry of Finance directive Tai-Tsai-Shui No. 62717 dated November 8, 1984, further defines that “Where the decedent died or the fact of giving the land as a gift occurred after the amended Enforcement Rules of the Agricultural Development Act were promulgated and became effective, Article 21 of said Enforcement Rules shall be followed. That is, no estate tax or gift tax may be exempted under Article 31 of the Agricultural Development Act or Articles 17 and 20 of the Estate and Gift Tax Act for land that was legally classified for non-agricultural use.” To the extent that the provision of said Enforcement Rules and the directive, having rendered Article 31 of the Agricultural Development Act as amended on January 6, 1986, with respect to the exemption of the estate tax or gift tax inapplicable to land legally classified for non-agricultural use but continuously used for its original agricultural purpose before the time fixed for its non-agricultural use began, have added restrictions that are not prescribed by law and are thus in conflict with the principle of taxation by law embodied in Article 19 of the Constitution and are furthermore contrary to the constitutional intention of protecting the property right of the people and the principle of reservation of law (Gesetzesvorbehalt). Thus, they must be held to be no longer valid.
Reasoning：
It must be pointed out at the outset that, as the facts giving rise to the case before us occurred during 1993 and 1996, the law then in force must be applied. When the Agricultural Development Act was amended on August 1, 1983, the Enforcement Rules of the Act were accordingly amended on September 7, 1984. But when Article 2 of said Act was amended on January 6, 1986, no revision was made to the Enforcement Rules hereof. Thus, the law applicable to this case is limited to the law effective during such period. The further amendments to said Act on January 26, 2000, and to the Enforcement Rules thereof on June 7 of the same year are not applicable to the facts in this case, and were not taken into consideration by us in delivering this interpretation.
Article 19 of the Constitution provides that the people shall have the duty to pay tax in accordance with law. This means that the people have the duty to pay tax and the privilege to enjoy tax benefit pursuant to the taxpaying bodies, tax denominations, tax rates, methods of tax payment, and tax reduction and exemption as they are prescribed by law. The competent authority, in establishing enforcement rules based on the general authorization granted by law, is empowered only to regulate matters relating to the enforcement of the duty to pay tax and the elements required by the enabling statute, with no additions thereto or reductions therefrom, or such rules will be in conflict with the doctrine of taxation per legislation. Furthermore, under Article 23 of the Constitution, any restraint to be imposed on the freedoms and rights of the people must be prescribed by law and may not go beyond the degree of necessity. Where an administrative agency is authorized by the Legislature to issue rules and ordinances as supplements to law, such administrative agency may establish rules in respect of detail and technical matters in relation to the enforcement of the law to the extent that such rules are consistent with the legislative purposes and do not go beyond the scope of power granted by the enabling statute and that the contents of such rules do not conflict with the enabling statute or add any restriction that is not prescribed by law on the freedoms and rights of the people. This has been made clear repeatedly in our Interpretations Nos. 313, 367, 385, 413, 415 and 458. Hence, the purpose of the principle of taxation by law is to prevent the administrative authorities from making arbitrary changes to the duty to pay tax by way of administrative ordinances to the extent of going beyond the prescription set forth by the enabling law, thereby resulting in infringement of the right of the people.
The Agricultural Development Act as amended on August 1, 1983, provides in Article 31, the first sentence: “A successor capable of self-tilling who inherits or accepts agricultural land being used as a family farm and continues to engage in agricultural production is exempt from estate tax or gift tax, as the case may be.” Under the Enforcement Rules of the Agricultural Development Act as amended on September 7, 1984, no exemption from estate tax is allowed where succession to agricultural land occurs after the land was classified by the competent authority for non-agricultural use. However, by the Ministry of Finance directive Tai-Tsai-Shui No. 830625682 of November 29, 1994, a tax exemption would be allowable on certain conditions, and this provision was incorporated in said Enforcement Rules when they were revised on June 7, 2000. Insofar as the facts giving rise to this petition for interpretation are concerned, the provisions set forth in the Agricultural Development Act with respect to the assessment of and exemption from the estate tax remained unchanged, whereas the tax burden of the taxpayers was changed in substance by the administrative ordinances issued one after the other. This situation can hardly be said to be consistent with the principle of taxation by law. The term “agricultural land” used in Article 31 of said Act is defined by Article 3, Subparagraph 10, to mean “farmhouses, shelters for livestock and poultry, storage facilities, farmyards, repositories, farm roads, irrigation, drainage, and other agricultural land for farming, forestry, cultivation, husbandry, If its continued operation is less than five years, all taxes payable thereon must be collected retroactively without any tax incentive. (See Agricultural Development Act, Article 31, proviso, then prevailing) To determine the scope of practical application of “agricultural land” defined by the Agricultural Development Act as aforesaid, the provisions of relevant laws such as the Land Act must be taken into consideration for the purpose of construction as a whole, in addition to the defining prescription set forth in said Act. If, however, such defined limit is overstepped to the extent that the elements required by law with respect to the duty to pay tax or to the privilege of tax reduction or exemption are arbitrarily expanded or abridged, it will be impermissible on the principle of taxation by law embodied in Article 19 of the Constitution. Even if the Ministry of Finance may consider that Article 31 of said Act, with respect to the elements for and the scope of tax exemption, is overly liberal to the extent of jeopardizing the financial and tax policies of the government, or being inconsistent with the purpose of encouraging the development of agriculture, and that modification is therefore necessary, it must be amended in pursuance of the authorization of the enabling statute, and its application may not be either limited or curtailed directly through the issue of enforcement rules or interpretative administrative regulations. The Enforcement Rules of said Act, as amended on September 7, 1984, provide in Article 21, the second sentence: “Agricultural land used as a family farm does not include land that was legally classified for non-agricultural use before it was inherited or given as a gift.” And the Ministry of Finance directive Tai-Tsai-Shui No. 62717 dated November 8, 1984, further defines that “Where the decedent died or the fact of giving the land as a gift occurred after the amended Enforcement Rules of the Agricultural Development Act were promulgated and became effective, Article 21 of said Enforcement Rules shall be followed. That is, no estate tax or gift tax may be exempted under Article 31 of the Agricultural Development Act or Articles 17 and 20 of the Estate and Gift Act for land that was legally classified for non-agricultural use.” To the extent that the provision of such enforcement rules and the directive, by rendering Article 31 of the Agricultural Industry Development Act then in force with respect to exemption of the estate tax or gift tax inapplicable to agricultural land that was at all times used as a family farm but was legally classified as land for non-agricultural use before the beginning of succession or before the occurrence of the fact of being given as a gift but is available for continued use for its original agricultural purpose after the death of the heir or after the occurrence of the fact of being given as a gift and before the time fixed for its non-agricultural use begins, have limited and curtailed the scope of application of “agricultural land” as defined by Article 3, Subparagraph 10, of said Act then in force through the direct issue of administrative ordinance, with the result of adding restrictions that are not prescribed by law, albeit they may be consistent with the purpose of agricultural development. Such restrictions are thus in conflict with the principle of taxation by law embodied in Article 19 of the Constitution and are furthermore contrary to the constitutional intention of protecting the property right of the people and the principle of reservation of law (Gesetzesvorbehalt). They must be held to be no longer valid (See J. Y. Interpretation No. 210). As regards the term “arable land” defined by Article 3, Subparagraph 11, of said Act, it is designed for policy consideration for the sole purpose of explaining the term “arable land” contained in the text of said Act, e.g., Article 30 (now Article 16) with respect to circumstances where division and transfer of arable land are prohibited (with the addition of Articles 20, 21 and 22 in the current version with special provisions in respect of lease of arable land), and such explanation should certainly not be taken as a ground on which the scope of the meaning of “agricultural land” in Subparagraph 10 of the same article may either be limited or abridged.
'Translated by Raymond T. Chu.
解釋字號：釋字第566號
解釋日期：民國92年9月26日
解釋爭點：農發條例細則等命令就非農用仍農作土地，課遺贈稅違憲？
資料來源：
司法院公報 第 45 卷 11 期 8-30 頁
司法周刊 第 1153 期 1 版
司法院大法官解釋（十六）（99年5月版）第 197-232 頁
考選周刊 第 935 期 3 版
法令月刊 第 54 卷 10 期 83-88 頁
總統府公報 第 6550 號 11-52 頁
法務部公報 第 316 期 66-90 頁
相關法條：
中華民國憲法 第 19、23 條 ( 36.01.01 )
土地法 第 82、83 條 ( 90.10.31 )
遺產及贈與稅法 第 17、20 條 ( 70.06.19 )
遺產及贈與稅法 第 17、20 條 ( 90.06.13 )
農業發展條例 第 3、31 條 ( 75.01.06 )
農業發展條例 第 3、38 條 ( 92.02.07 )
農業發展條例施行細則 第 21 條 ( 73.09.07 )
農業發展條例施行細則 第 2 條 ( 89.06.07 )
解釋文：
中華民國七十二年八月一日修正公布之農業發展條例第三十一條前段規定，家庭農場之農業用地，其由能自耕之繼承人繼承或承受，而繼續經營農業生產者，免徵遺產稅或贈與稅。七十三年九月七日修正發布之同條例施行細則 第二十一條後段關於「家庭農場之農業用地，不包括於繼承或贈與時已依法編定為非農業使用者在內」之規定，以及財政部七十三年十一月八日臺財稅第六二七一七號函關於「被繼承人死亡或贈與事實發生於修正農業發展條例施行細則發布施行之後者，應依該細則第二十一條規定，即凡已依法編定為非農業使用者，即不得適用 農業發展條例第三十一條及遺產及贈與稅法第十七條、第二十條規定免徵遺產稅及贈與稅」之函釋，使依法編為非農業使用之土地，於其所定之使用期限前，仍繼續為從來之農業使用者，不能適用七十五年一月六日修正公布之農業發展條例第三十一條免徵遺產稅或贈與稅之規定及函釋，均係增加法律所無之限制，違反憲法第十九條租稅法律主義，亦與憲法保障人民財產權之意旨暨法律保留原則有違，應不再適用。
理由書：
本件解釋所由生之具體事件係發生於八十二年及八十五年間，自應適用當時有效之法令。查農業發展條例於七十二年八月一日修正公布，同條例施行細則亦於七十三年九月七日修正發布，嗣同條例於七十五年一月六日雖修正公布第二條，惟同條例施行細則並未修正。從而本解釋之適用法令，自應以此為範圍，至八十九年一月二十 六日同條例之再修正及同年六月七日同條例施行細則之再修正，均非本件具體事件所適用之法令，不在本解釋之範圍，合先敘明。
憲法第十九條規定，人民有依法律納稅之義務，係指人民有依法律所定之納稅主體、稅目、稅率、納稅方法及稅捐減免等項目，負繳納稅捐之義務或享受減免稅捐之優惠，主管機關基於法律概括授權而訂定之施行細則，僅得就實施母法所定納稅義務及其要件有關之事項予以規範，不得另為增減，否則即屬違反租稅法律主義；又有關人民自由權利之限制，應以法律定之，且不得逾越必要之程度，憲法第二十三條定有明文，如立法機關授權行政機關發布命令為補充規定者，行政機關於符合立法 意旨且未逾越母法規定之限度內，亦得就執行法律有關之細節性、技術性事項以施行細則定之，惟其內容不得牴觸母法或對人民之自由權利增加法律所無之限制，迭經本院釋字第三一三號、第三六七號、第三八五號、第四一三號、第四一五號、第四五八號等解釋闡釋甚明。是租稅法律主義之目的，亦在於防止行政機關恣意以行政命令逾越母法之規定，變更納稅義務，致侵害人民權益。
七十二年八月一日修正公布之農業發展條例第三十一條前段規定：「家庭農場之農業用地﹐其由能自耕之繼承人一人繼承或承受，而繼續經營農業生產者，免徵遺產稅 或贈與稅」。農業用地經主管機關編定為非農業使用後，發生繼承之事實，依七十三年九月七日修正公布之農業發展條例施行細則之規定，不能免徵遺產稅，惟依財政部八十三年十一月二十九日臺財稅字第八三○六二五六八二號函則可按一定條件免稅，此一免稅規定於八十九年六月七日修正上開施行細則時正式予以納入。就引發本件解釋之事實而言，農業發展條例有關徵免遺產稅之規定並未修正，行政機關前後行政命令卻已實質變更納稅人之租稅負擔，此種情形難謂與租稅法律主義相符。上開條例第三十一條所稱「農業用地」，依同條例第三條第十款規定，指「供農作、森林、養殖、畜牧及與農業經營不可分離之農舍、畜禽舍、倉儲設備、曬 場、集貨場、農路、灌溉、排水及其他農用之土地」，立法者並未限定該土地須為經依法編定為一定農牧、農業用途或田、旱地目，始為農業用地，惟基於法律適用之整體性，該土地仍須以合法供農用者為限，而不包括非法使用在內。又依土地法第八十三條規定，土地經編為某種使用地之土地，於其所定之使用期限前，仍得繼續為從來之使用。故土地雖經編為非農業使用，除不得供其他用途之使用外，於所定使用期限前，仍非不得繼續為從來之使用，如其繼續經營不滿五年者，仍應追繳應納稅賦不予優惠（參照當時適用之農業發展條例第三十一條但書）。前述農業發展條例關於農業用地之認定，除該條例所作之定義性規定外，雖亦應與土地法等相 關法律規定為整體性闡釋，以定其具體適用範圍。惟若逾越此一範圍，任意擴張、縮減法律所定租稅義務或減免之要件，即非憲法第十九條規定之租稅法律主義所許，縱財政部認該條例第三十一條關於免稅要件及範圍規定過寬，影響財稅政策或有不合獎勵農業發展之原意，有修正必要，亦應循母法修正為之，殊不得任意以施 行細則或解釋性之行政規則逕加限縮其適用範圍。七十三年九月七日修正發布之農業發展條例施行細則第二十一條後段關於「家庭農場之農業用地，不包括於繼承或贈與時已依法編定為非農業使用者在內」之規定，以及財政部七十三年十一月八日臺財稅第六二七一七號函關於「被繼承人死亡或贈與事實發生於修正農業發展條例施行細則發布施行之後者，應依該細則第二十一條規定，即凡已依法編定為非農業使用者，即不得適用農業發展條例第三十一條及遺產及贈與稅法第十七條、第二十條規定免徵遺產稅及贈與稅」之函釋，對於向來作為家庭農場之農業用地，因繼承開始前或贈與事實發生前依法編為非農業使用之土地，而於繼承人死亡或贈與事實發生後，於其所定使用期限前，仍可繼續為從來之農業使用者，亦不適用當時之農業發展條例第三十一條免徵遺產稅或贈與稅之規定及函釋部分，即令符合獎勵農業發展之目的，惟其逕以命令訂定，限縮當時有效之同條例第三條第十款「農業用地」定義可適用之範圍，均為增加法律所無之限制，違反憲法第十九條租稅法律主義，亦與憲法保障人民財產權之意旨暨法律保留原則有違，應不再適用（參照本院釋字第二一○號解釋意旨）。至同條例第三條第十一款關於「耕地」之定義，係基於政策考量，僅在解釋同條例條文中有「耕地」之文字者，例如第三十條（現改為第十六條）關於耕地分割及移轉禁止之情形（現行條例另增第二十條、第二十一條、第二十二條關於耕地租賃之特別規定），自不能據該款解釋，限縮同條第十款「農業用地」之意義範圍，併此說明。
J. Y. Interpretation No. 566
Date：2003.9.26
Issue：The Agricultural Development Act provides that a successor capable of self-tilling who inherits or accepts agricultural land used as a family farm and continues to engage in agricultural production is exempt from estate tax or gift tax. However, the Enforcement Rules of said Act provide that agricultural land used as a family farm does not include land that was legally classified for non-agricultural use before it was inherited or given as a gift, and a Ministry of Finance directive further defines that where the decedent died or the fact of giving the land as a gift occurred after the Enforcement Rules of said Act became effective, no estate tax or gift tax may be exempted for such land. Do said enforcement rules and directive add restrictions that are not prescribed by law and are they thus in conflict with the Constitution?
Holding：
The Agricultural Development Act as amended on August 1, 1983, provides in Article 31, the first sentence, that a successor capable of self-tilling who inherits or accepts agricultural land being used as a family farm and continues to engage in agricultural production is exempt from estate tax or gift tax, as the case may be. However, the Enforcement Rules of said Act, as amended on September 7, 1984, provide in Article 21, the second sentence: “Agricultural land used as a family farm does not include land that was legally classified for non-agricultural use before it was inherited or given as a gift.” And the Ministry of Finance directive Tai-Tsai-Shui No. 62717 dated November 8, 1984, further defines that “Where the decedent died or the fact of giving the land as a gift occurred after the amended Enforcement Rules of the Agricultural Development Act were promulgated and became effective, Article 21 of said Enforcement Rules shall be followed. That is, no estate tax or gift tax may be exempted under Article 31 of the Agricultural Development Act or Articles 17 and 20 of the Estate and Gift Tax Act for land that was legally classified for non-agricultural use.” To the extent that the provision of said Enforcement Rules and the directive, having rendered Article 31 of the Agricultural Development Act as amended on January 6, 1986, with respect to the exemption of the estate tax or gift tax inapplicable to land legally classified for non-agricultural use but continuously used for its original agricultural purpose before the time fixed for its non-agricultural use began, have added restrictions that are not prescribed by law and are thus in conflict with the principle of taxation by law embodied in Article 19 of the Constitution and are furthermore contrary to the constitutional intention of protecting the property right of the people and the principle of reservation of law (Gesetzesvorbehalt). Thus, they must be held to be no longer valid.
Reasoning：
It must be pointed out at the outset that, as the facts giving rise to the case before us occurred during 1993 and 1996, the law then in force must be applied. When the Agricultural Development Act was amended on August 1, 1983, the Enforcement Rules of the Act were accordingly amended on September 7, 1984. But when Article 2 of said Act was amended on January 6, 1986, no revision was made to the Enforcement Rules hereof. Thus, the law applicable to this case is limited to the law effective during such period. The further amendments to said Act on January 26, 2000, and to the Enforcement Rules thereof on June 7 of the same year are not applicable to the facts in this case, and were not taken into consideration by us in delivering this interpretation.
Article 19 of the Constitution provides that the people shall have the duty to pay tax in accordance with law. This means that the people have the duty to pay tax and the privilege to enjoy tax benefit pursuant to the taxpaying bodies, tax denominations, tax rates, methods of tax payment, and tax reduction and exemption as they are prescribed by law. The competent authority, in establishing enforcement rules based on the general authorization granted by law, is empowered only to regulate matters relating to the enforcement of the duty to pay tax and the elements required by the enabling statute, with no additions thereto or reductions therefrom, or such rules will be in conflict with the doctrine of taxation per legislation. Furthermore, under Article 23 of the Constitution, any restraint to be imposed on the freedoms and rights of the people must be prescribed by law and may not go beyond the degree of necessity. Where an administrative agency is authorized by the Legislature to issue rules and ordinances as supplements to law, such administrative agency may establish rules in respect of detail and technical matters in relation to the enforcement of the law to the extent that such rules are consistent with the legislative purposes and do not go beyond the scope of power granted by the enabling statute and that the contents of such rules do not conflict with the enabling statute or add any restriction that is not prescribed by law on the freedoms and rights of the people. This has been made clear repeatedly in our Interpretations Nos. 313, 367, 385, 413, 415 and 458. Hence, the purpose of the principle of taxation by law is to prevent the administrative authorities from making arbitrary changes to the duty to pay tax by way of administrative ordinances to the extent of going beyond the prescription set forth by the enabling law, thereby resulting in infringement of the right of the people.
The Agricultural Development Act as amended on August 1, 1983, provides in Article 31, the first sentence: “A successor capable of self-tilling who inherits or accepts agricultural land being used as a family farm and continues to engage in agricultural production is exempt from estate tax or gift tax, as the case may be.” Under the Enforcement Rules of the Agricultural Development Act as amended on September 7, 1984, no exemption from estate tax is allowed where succession to agricultural land occurs after the land was classified by the competent authority for non-agricultural use. However, by the Ministry of Finance directive Tai-Tsai-Shui No. 830625682 of November 29, 1994, a tax exemption would be allowable on certain conditions, and this provision was incorporated in said Enforcement Rules when they were revised on June 7, 2000. Insofar as the facts giving rise to this petition for interpretation are concerned, the provisions set forth in the Agricultural Development Act with respect to the assessment of and exemption from the estate tax remained unchanged, whereas the tax burden of the taxpayers was changed in substance by the administrative ordinances issued one after the other. This situation can hardly be said to be consistent with the principle of taxation by law. The term “agricultural land” used in Article 31 of said Act is defined by Article 3, Subparagraph 10, to mean “farmhouses, shelters for livestock and poultry, storage facilities, farmyards, repositories, farm roads, irrigation, drainage, and other agricultural land for farming, forestry, cultivation, husbandry, If its continued operation is less than five years, all taxes payable thereon must be collected retroactively without any tax incentive. (See Agricultural Development Act, Article 31, proviso, then prevailing) To determine the scope of practical application of “agricultural land” defined by the Agricultural Development Act as aforesaid, the provisions of relevant laws such as the Land Act must be taken into consideration for the purpose of construction as a whole, in addition to the defining prescription set forth in said Act. If, however, such defined limit is overstepped to the extent that the elements required by law with respect to the duty to pay tax or to the privilege of tax reduction or exemption are arbitrarily expanded or abridged, it will be impermissible on the principle of taxation by law embodied in Article 19 of the Constitution. Even if the Ministry of Finance may consider that Article 31 of said Act, with respect to the elements for and the scope of tax exemption, is overly liberal to the extent of jeopardizing the financial and tax policies of the government, or being inconsistent with the purpose of encouraging the development of agriculture, and that modification is therefore necessary, it must be amended in pursuance of the authorization of the enabling statute, and its application may not be either limited or curtailed directly through the issue of enforcement rules or interpretative administrative regulations. The Enforcement Rules of said Act, as amended on September 7, 1984, provide in Article 21, the second sentence: “Agricultural land used as a family farm does not include land that was legally classified for non-agricultural use before it was inherited or given as a gift.” And the Ministry of Finance directive Tai-Tsai-Shui No. 62717 dated November 8, 1984, further defines that “Where the decedent died or the fact of giving the land as a gift occurred after the amended Enforcement Rules of the Agricultural Development Act were promulgated and became effective, Article 21 of said Enforcement Rules shall be followed. That is, no estate tax or gift tax may be exempted under Article 31 of the Agricultural Development Act or Articles 17 and 20 of the Estate and Gift Act for land that was legally classified for non-agricultural use.” To the extent that the provision of such enforcement rules and the directive, by rendering Article 31 of the Agricultural Industry Development Act then in force with respect to exemption of the estate tax or gift tax inapplicable to agricultural land that was at all times used as a family farm but was legally classified as land for non-agricultural use before the beginning of succession or before the occurrence of the fact of being given as a gift but is available for continued use for its original agricultural purpose after the death of the heir or after the occurrence of the fact of being given as a gift and before the time fixed for its non-agricultural use begins, have limited and curtailed the scope of application of “agricultural land” as defined by Article 3, Subparagraph 10, of said Act then in force through the direct issue of administrative ordinance, with the result of adding restrictions that are not prescribed by law, albeit they may be consistent with the purpose of agricultural development. Such restrictions are thus in conflict with the principle of taxation by law embodied in Article 19 of the Constitution and are furthermore contrary to the constitutional intention of protecting the property right of the people and the principle of reservation of law (Gesetzesvorbehalt). They must be held to be no longer valid (See J. Y. Interpretation No. 210). As regards the term “arable land” defined by Article 3, Subparagraph 11, of said Act, it is designed for policy consideration for the sole purpose of explaining the term “arable land” contained in the text of said Act, e.g., Article 30 (now Article 16) with respect to circumstances where division and transfer of arable land are prohibited (with the addition of Articles 20, 21 and 22 in the current version with special provisions in respect of lease of arable land), and such explanation should certainly not be taken as a ground on which the scope of the meaning of “agricultural land” in Subparagraph 10 of the same article may either be limited or abridged.
'Translated by Raymond T. Chu.
今日瀏覽人數：13808 總瀏覽人數：9704043
|
帝謙高雄法律事務所 | 關於高雄律師 | 高雄法律顧問 | 高雄律師服務項目 | 不動產律師 | 高雄律師專欄 | 高雄律師法律諮詢 | 高雄律師最新消息 | 聯絡高雄律師 |
|
電話：(07)558-9090 傳真：(07)558-9010 地址：813 高雄市左營區明華一路350號11樓之2  Copyright © 2013-2015 Deep-Change Law Firm, All Rights Reserved 網頁設計:uuTaiwan |
友情連結 |
帝謙法律事務所是國內專業的律師事務所，我們提供專業的法律諮詢、民事訴訟、刑事訴訟、行政訴訟訴願、保險理賠、撰寫存證信函、律師信函、不動產法律、遺產繼承規劃、常年法律顧問、契約撰擬…及其他法律專案，高雄律師團隊經驗豐富、辦案認真，積極處理並以同理心處理每個客戶所委託的案件。