商譽攤銷爭訟之舉證責任與協力義務研究

Abstract

商譽攤銷雖有明確之法律依據，惟在爭訟過程中納稅義務人鮮少獲得有利判決，其主要原因來自於100年12月最高行政法院庭長法官聯席會議採取甲說之決議：納稅義務人應就併購交易所產生之商譽價值負全部的客觀舉證責任，且應舉證證明收購成本真實、必要及合理，以及可辨認淨資產公平價值。\n本文比較該會議甲說、乙說、丙說，以及最高行政法院100年判字第723號、第727號判決之見解，並作相關舉證責任及協力義務之探討。首先，本文認為收購成本合理性不應成為商譽認列與否之證明對象，退一步言之，若將合理性列為證明對象，應由稅捐稽徵機關負舉證責任。其次，可辨認淨資產公平價值之證明方面，若稅捐稽徵機關認為納稅義務人之估價偏低，則應由稅捐稽徵機關負舉證責任提出更合理之鑑價，納稅義務人僅配合提供協力義務。最後，收購成本真實性及必要性經納稅義務人證明後，在職權調查主義下，稅捐稽徵機關對於商譽攤銷之認列應有「轉正」義務。整體而言，本文認同乙說見解(最高行政法院100年判字第723號、第727號判決之見解與其類似)。\n此外，收購成本合理性及可辨認淨資產公平價值無論由何造當事人負舉證責任，本文認為證明度應降低至優勢蓋然性。在獨立專家報告之證據評價方面，本文認為法院不宜輕易地否定其證據力。

While the amortization of goodwill is supported by a clear statutory provision, taxpayers rarely win such litigations. The main reason is that the First Joint Meeting of Chief Judges and Judges of the Supreme Administrative Court in December 2011 resolved, after considering Opinion A, Opinion B, and Opinion C, to adopt Opinion A. Opinion A states that taxpayers are obliged to bear the burden of proof for the value of goodwill resulting from mergers and acquisitions, and also that taxpayers are obliged to prove that the acquisition cost is authentic, necessary and reasonable, as well as the fair value of the identifiable net asset.\nThis paper compares the differences among three different views presented and considered in the meeting aforementioned, and the Supreme Administrative Court`s Judgment Pan Zi No. 723 and Judgment Pan Zi No. 727 in 2011, and studies the burden of proof and taxpayers’ statutory obligations mentioned in these opinions. Firstly, this study pointed out that the reasonableness of acquisition cost should not be within the scope of inquiry, and, if it should be investigated and proven, the tax collection authorities should bear the burden of proof. Secondly, with regard to the fair value of the identifiable net asset, if the tax collection authorities consider it understated by the taxpayers, this study believes that the tax collection authorities should bear the burden of proof and, in other words, are obliged to present a more reasonable valuation report. What taxpayers bear are only the statutory obligations to provide the required information to the tax collection authorities. Finally, in accordance with the inquisitorial system of administrative investigation, after taxpayers prove that the acquisition cost is authentic and necessary, the tax collection authorities are obliged to directly determine the amount of the goodwill permitted for amortization by way of appraising the value of goodwill, rather than dismissing the amortization of goodwill altogether. Overall, this study agrees with Opinion B presented in the aforementioned meeting, which is also similar to the opinion held by the Supreme Administrative Court`s Judgment Pan Zi No. 723 and Judgment Pan Zi No. 727 in 2011.\nBesides, no matter which side of the litigating parties should bear the burden of proof for the reasonableness of acquisition cost and for the fair value of the identifiable net asset, this study contends that the appropriate evidentiary standard should be the preponderance of evidence. Regarding independent experts` reports, this study maintains that it is inappropriate for judges to easily deny their the probative value.