以保險給付規避稅捐之研究 —以遺產及贈與稅為中心

Abstract

保險制度具有分散個人、家庭及企業等個別經濟單位之風險功能，使其經濟生活不因保險事故發生而造成經濟困境，進而達成整體社會達成經濟上安定。我國雖有全民健康保險、勞工保險、農民保險、公教人員保險、軍人保險、國民年金等社會保險及社會救助等社會安全制度，且社會上亦有相當多的社會福利機構從事於社會公益之活動。然而前述社會保險對於國人之經濟安全保障仍有不足，為彌補社會安全制度之不足，我國對於商業保險提供租稅優惠，如保險費可自所得總額中扣除。其中遺產及贈與稅法第16條第9款亦規定，死亡保險給付經指定受益人者，可免計入遺產總額課稅。 因遺產及贈與稅法對於死亡保險給付無免稅額度限制，而成為富人規劃租稅之熱門項目，甚而利用躉繳保費、高齡、帶病、短期、鉅額、密集、舉債等異常投保方式以圖減少租稅負擔。然而此類異常投保案件亦常經稅捐機關以實質課稅原則方式加以納入遺產總額課稅，進而發生訟爭。又因一般租稅規避防制規定之法定要件過於抽象，而遭外界質疑租稅規避於認定上流於主觀。因此，縱我國稅捐稽徵法已明訂租稅規避之一般防制規定，此類爭議迄今未能徹底解決。 從保險契約之法律關係及保險法相關規定來看，受益人取得保險給付係由保險契約取得之無償給付，而非繼承關係，其經濟實質類似於贈與。因此，遺產及贈與稅法第16條第9款規定非屬租稅優惠規定，且遺產及贈與稅法存在法律漏洞，而使得被繼承人得利用此一法律漏洞規避租稅。另透過實務上以死亡保險規避租稅案例之檢討，發現現行實務運用實質課稅原則將死亡保險給付納稅課稅之作法，因法規要件抽象造成審理程序複雜且亦爭議，亦無法遏止層出不窮的租稅規避案例。為落實租稅法之租稅公平原則及租稅法定原則並消弭徵納雙方之訟爭，本文建議就此類透過死亡保險規避租稅案例類型訂立特別防制規定，方能從根本解決將此類租稅規避爭議。

The insurance system has the function of dispersing the risks of individual economic units such as individuals, families, and enterprises, so that their economic life will not cause economic dilemma due to accidents, and thus achieve economic stability of the overall society. Although my country has social security systems such as national health insurance, labor insurance, farmer health insurance, government employees & teachers insurance, insurance for military personnel, national pension and other social insurance, and social assistance, there are also quite a number of social welfare organizations engaged in social welfare activities. However, the aforementioned social insurance is still inadequate for the economic security of citizens. To make up for the insufficiency of the social security system, my country provides tax incentives for commercial insurance, such as insurance premiums that can be deducted from the total income. Among them, paragraph 9 of Article 16 of the Estate and Gift Tax Act also stipulates that insurance payments of the death to the designated beneficiary can be exclused from the gross estate.

Due to there is no limit to the tax exemption in in Article 16 Section 9 of the Estate and Gift Tax Law, it has become a popular way for the rich to taxation plan. They even use a lump sum payment of insurance premiums, elderly, sick, short-term, huge amounts, intensive, and borrowing and other unusual insurance methods to to reduce the tax burden. However, payments of such abnormal insurance cases are often included in the taxation of the total estate by the taxation authority based on the principle of substantive taxation, and then litigation occurs. Also, because the statutory requirements for the general prevention regulations of tax evasion are too abstract, it has been doubted by outsiders that the judgment of tax evasion is generally subjective. Even though the tax collection law of our country stipulates general prevention provisions for tax evasion, but such disputes have not been completely resolved until today.

This article based on the legal relationship of insurance contracts and the current provisions of the Insurance Act, researched out that the beneficiary’s insurance benefits are obtained by insurance contracts without charge, it is not part of the estate. And its economic essence is similar to gift. Furthermore, find out Article 16, Section 9 of the Estate and Gift Tax Act is not a tax incentives provision, and there is a legal loophole in the Estate and Gift Tax Act, which enables the decedent to to take advantage of this legal loophole to avoid the tax. In addition, through a practical review of tax avoidance cases of death insurance, it is found that the relevant agency use the principle of substantive taxation to tax death insurance benefits is complicated due to the abstraction of legal requirements, and it is difficult to deal with endless tax avoidance cases. In order to implement the principles of fairness in taxation and statutory taxation, and eliminate disputes between the taxing parties, this article proposes to establish special prevention regulations for this type of tax avoidance cases, so as to fundamentally resolve such disputes of tax avoidance.