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1
Valli, Xavier. "Le juge fiscal judiciaire et le droit privé." Thesis, Aix-Marseille, 2014. http://www.theses.fr/2014AIXM1013.
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Le contentieux fiscal est partagé entre les juridictions administratives et les juridictions judiciaires. Si le premier est souvent présenté comme le juge naturel de l'impôt, la compétence du second peine à être justifiée. À cela s'ajoute la question de savoir si le juge judiciaire, juge du droit privé ayant une culture de droit privé, est vraiment apte à statuer en droit fiscal, relevant fondamentalement du droit public. D'ailleurs, il apparaît assez vite que le juge fiscal judiciaire présente un particularisme fondé sur sa relation au droit privé. Le juge fiscal judiciaire met au centre de sa jurisprudence le droit privé et la conception du droit qui en découle. À l'inverse, ce lien avec le droit privé tend aussi à se relativiser au contact du droit fiscal, ce qui permet d'affirmer qu'il est un véritable juge fiscal. En approfondissant la structure normative du droit fiscal, il devient alors possible de remarquer que la structure complexe de cette branche du droit est un facteur de justification de la compétence fiscale judiciaire. Ce lien avec le droit privé et son application du droit privé dans le champ du contentieux fiscal sont deux éléments qui permettent alors de légitimer sa compétence et de conforter sa position de juridiction fiscaleIn the French court system, tax litigation is shared between the administrative law courts and private law courts. If the former are often presented as the natural judge of the tax, it is more difficult to justify the jurisdiction of the latter. The object of this present work only concerns private law courts. That is why, it is worth asking whether the private law judge, with a culture of private law, is really able to decide on tax law, basically governed by public law. Moreover, this tax law judge has a particularism due to his relationship to private law and puts private law at the center of his case law. By contrast, this link with private law also tends to become relative with regard to tax law, which allows us to assert that he stands as a true fiscal court. By Deepening the normative structure of tax law, it becomes possible to observe that the complex structure of this branch of the law is a definite factor in the justification of his jurisdiction in tax disputes. This link with private law and his implementation of private law in the field of tax litigation are two elements that are then used to legitimize his authority and strenghten his position as a tax justice
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Prado, Luciana Mellario do. "A litigância de má-fé do advogado." Pontifícia Universidade Católica de São Paulo, 2014. https://tede2.pucsp.br/handle/handle/6608.
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Previous issue date: 2014-09-26The current study aims at analyzing the phenomenon of the attorney s litigation in bad faith, which attorney, as an indispensable agent of the administration of Justice, must not only apply his/her best efforts to achieve a favorable solution for his/her client, but also act in order to correctly conduct legal proceedings. During an attorney s work, then, if the same employs his/her technical expertise to try and obtain an illegal advantage, through quirk means that might twist the regular proceeding or result of a lawsuit, that attorney s own litigation in bad faith may be characterized. Thus, the purposes of the current study are: a) to conceptualize the attorney and the legal discipline that regulates his/her work; b) discuss litigation in bad faith; c) analyze the many legal provisions refraining procedural disloyalty acts and their applicability to attorneys; and, finally, d) discuss the sufficiency or lack thereof of our legal order to provide an adequate response to that issue. This is a relevant theme because, at a time of juridical crisis, in view of the State s inability to adequately provide access to justice, within the timeframe and in the manner desired by the population, it is highly important to point what might be the hindrances to the proper access to sound legal proceedings. Therefore, the current study s ultimate purpose is to establish a parallel between an attorney s litigation in bad faith and the inefficacity of legal proceedings, exactly as both arise from condemnable attitudes that are also divorced from the actual function of providing a due legal procedure, and especially when derived from an attorney, hindering the exercise of legal counseling from achieving its utmost finality
O presente estudo objetiva analisar o fenômeno da litigância de má-fé do advogado, que, como agente indispensável à administração da Justiça, deve não só envidar seus esforços na obtenção de solução favorável ao seu cliente, mas também pautar pela correta condução do processo. Em sua atuação, pois, se utilizado seu conhecimento técnico para a obtenção de vantagem escusa, por meio de ardis que deturpem a regular marcha ou resultado do processo, pode vir a ser caracterizada sua própria litigância de má-fé. Assim, os objetivos deste estudo são: a) conceituar o advogado e a disciplina legal que regula sua atuação; b) discorrer sobre a litigância de má-fé; c) analisar as diversas previsões legais de coibição dos atos de deslealdade processual e sua aplicabilidade ao advogado; e, por fim, d) discorrer acerca da suficiência ou não de nosso ordenamento para fornecer a adequada resposta à questão. O tema é relevante porque, em tempos de crise da justiça, diante da impossibilidade do Estado prestar adequadamente o provimento jurisdicional, no tempo e modo ansiados pela população, é de importância se apontar onde estão as chagas da abusividade do acesso à justiça. Desta forma, o objetivo último deste estudo é traçar paralelo entre litigância de má-fé do advogado e a ineficácia da justiça, na exata medida em que atitudes reprováveis e divorciadas da efetiva função do processo, mais ainda quando oriundas do advogado, impedem que seja atingida sua elevada finalidade
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Anceles, Eliana Karsten. "Fatores explicativos do reconhecimento de ativos fiscais recuperáveis, diferidos e litigiosos: um estudo em empresas do ramo de agronegócios." Universidade do Vale do Rio dos Sinos, 2012. http://www.repositorio.jesuita.org.br/handle/UNISINOS/3697.
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CAPES - Coordenação de Aperfeiçoamento de Pessoal de Nível Superior
O estudo trata dos fatores explicativos do reconhecimento de ativos de natureza fiscal. Seu objetivo é identificar esses fatores em empresas pertencentes ao ramo de agronegócios. Estudos anteriores, alguns com enfoque nos ativos fiscais diferidos, identificaram, entre os fatores explicativos, a alavancagem, rentabilidade, lucratividade, endividamento, liquidez e tamanho das empresas. A partir da definição dos ativos em geral, o estudo propõe a classificação dos ativos fiscais em recuperáveis, diferidos e litigiosos. A pesquisa é aplicada, documental, explicativa e descritiva e com abordagem predominantemente quantitativa, com a utilização de técnicas estatísticas e econométricas. Foram analisadas as demonstrações contábeis, incluídas as notas explicativas, de empresas de capital aberto, listadas na BMF&BOVESPA, do ramo de agronegócio, no período de 2001 a 2010. Justifica-se o estudo nesse setor por ser destaque na balança comercial brasileira. Além disso, apresenta uma cadeia produtiva bem delineada, o que torna perceptível a sistemática não-cumulativa de tributos, com o consequente reconhecimento sucessivo de ativos fiscais recuperáveis (apropriação de créditos fiscais). Os resultados indicaram a interdependência entre o reconhecimento de ativos fiscais (o nível de reconhecimento de um ativo fiscal explica o nível do outro), além de evidenciarem que tais ativos podem ser explicados pelas variáveis Alavancagem, Liquidez Corrente, Ativo Imobilizado (Intensidade de Capital), Ativo Intangível, pelas Exportações, pelo Tamanho (com base na Receita Líquida) e pelo Estado de localização da sede da empresa. A variável Estados e as espécies desses ativos foram significantes nos modelos, o que confirmou o viés de omissão de variáveis em pesquisas anteriores, além de justificar a divergência de sinais de algumas variáveis. Comparando com os resultados de pesquisas anteriores, não foram determinantes do reconhecimento a rentabilidade, lucratividade e endividamento (ressalvado o caso especifico do ICMS). O trabalho contribuiu para evidenciar uma nova perspectiva de reconhecimento de ativos de natureza fiscal.
The study examines the factors of tax assets recognition. The objective is to identify these factors in agribusiness companies. Previous studies, some focusing on deferred tax assets, identified as a factor: leverage, profitability, indebtedness, marketability and firm size. From the definition of assets, the study proposes the classification of the asset tax in add-value, deferred and litigation. The research is applied, documentary, descriptive and explanatory, with quantitative approach through using statistical and econometric techniques. The financial statements were analyzed, including notes, of agribusiness companies listed on BMF&BOVESPA, in the period 2001 to 2010. This sector of Brazilian economy contributes to improve the trade balance. Moreover, it presents a specific supply chain with successive recognition of tax assets add-value (appropriation of tax credits). The results showed the interdependence between the recognition of tax assets (the level of recognition of a tax asset explains the level of another), and also show that this assets can be explained by the variables Leverage, Marketability, Fixed Assets (Capital Intensity), Intangible Assets, Exports, Firm Size and the States. The factor State and the species of these assets were significant in the models. This confirmed the omitted variable in previous research and justifies the difference of signs of some variables. However, were not determinants of tax assets recognition: profitability and indebtedness (except for the specific case of ICMS). The results show a new approach to recognition of tax assets.
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Samuelson, Jan. "Den svenska ersättningsmodellen för rättegångskostnader i skattemål i ljuset av rätten till rättvis rättegång." Thesis, Stockholms universitet, Juridiska institutionen, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-157185.
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Access to justice and the right to a fair trial are basic human rights explicitly stipulated in the European Convention on Human Rights (ECHR) as well as in the Swedish constitution. The fundamental meaning of these rights is that everyone should have an effective option for bringing their case to a court governed by the rule of law. Counsel fees and other process-costs may constitute a significant barrier to entry for an individual bringing his or her case to the court. Consequently, such cost-related barriers may deprive individuals of their right to a fair trial in practice. This fact is recognised in many legislations through legal aid provisions, reimbursement rules or similar mechanisms with the common purpose of eliminating, or at least lowering, the cost-barrier in question for the individual. Tax cases are often complex, and the average taxpayer would typically need to obtain legal counsel to vindicate his or her rights in a dispute with the tax authority. The taxpayer’s costs for such vindication may consequently be high. Swedish legislation stipulates that such costs under certain circumstances can be reimbursed by the state. In practice, however, the taxpayer seldom gets reimbursed for the full cost or even the majority of the cost, regardless of the outcome of the case. Even if the taxpayer wins the court case against the tax authority, it is not unusual that the taxpayer gets no reimbursement at all. This thesis analyses the Swedish reimbursement model for process-costs in tax cases and how it relates to the right to a fair trial. The question is whether the relevant legislation, and/or the courts’ application of it, risks being in breach of the ECHR’s and/or the Swedish constitution’s stipulated right to a fair trial. This thesis argues that it does; not as a result of the legislation itself, but because of the courts’ application of it. The risk of violating the right to a fair trial correlates primarily with two factors. These are what are at stake for the taxpayer (typically the disputed tax amount) and the complexity of the legal issues involved in the case. Trigger points for when the respective factor comes into play from a human rights perspective are analysed and discussed in the thesis. When they do, the absence of real possibilities of reimbursement of process-costs in a given tax case may constitute an unacceptable barrier for the individual to access justice and get a fair trial.
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Ribeiro, Antônio de Cístolo. "Provisões, contingências e normas contábeis: um estudo de gerenciamento de resultados com contencioso legal no Brasil." Universidade de São Paulo, 2012. http://www.teses.usp.br/teses/disponiveis/96/96133/tde-17052012-114448/.
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A presente pesquisa investigou frente às subjetividades apresentadas pelas normas contábeis do International Financial Report Standards (IFRS), cuja responsabilidade por traduzir, adaptar a situações locais e acompanhar a introdução no Brasil é do Comitê de Pronunciamentos Contábeis (CPC) e pela Legislação Tributária Brasileira, se há indícios de possibilidade de prática de Gerenciamento de Resultados (GR) via provisões relacionadas com o contencioso legal. Buscou-se também entender as singularidades da legislação tributária brasileira e os mecanismos usados na prática de GR. O procedimento Contábil, emitido pelo CPC, que disciplina a contabilização das provisões e dos ativos e passivos contingentes é o de nr. 25, uma tradução e adaptação do International Accounting Standard Nr. 37 (IAS 37), e foi o documento básico para o desenvolvimento deste trabalho. Buscou-se também entender se, após a introdução do CPC 25, houve aumento no disclosure de informações contábeis relativas a provisões e contingências pelas empresas. Como contribuição final foram explorados possíveis mecanismos para mitigar práticas de GR. A pesquisa é exploratória e triangula informações de advogados e auditores, explorando a existência e o mecanismo de GR via contencioso legal e as medidas a serem tomadas para sua mitigação. O período examinado compreende de 2006 - 2010, o qual inclui a introdução da Lei 11631 que muda a Lei das Sociedades por Ações e as normas do IFRS no Brasil. As provisões que têm origens em demandas fiscais administrativas e judiciais são elementos que podem ser manipulados pelas instituições utilizando de subjetividades existentes no entendimento e aplicação da legislação, no sentido de melhorar ou piorar o resultado contábil. A pesquisa mostrou que devido ao intrincado sistema tributário nacional, existe a possibilidade de gerenciamento de resultados via constituição ou não de provisões. Também foi confirmado que após a emissão do CPC 25, as empresas aumentaram o disclosure de informações sobre provisões, passivos e ativos contingentes.Given the subjectivity inherent in the accounting standards of the International Financial Report Standards (IFRS) that are translated into Portuguese, adapted to local situations and monitored by the Comitê de Pronunciamentos Contábeis (Accounting Standards Board - ASB) and the Brazilian tax legislation, the present study investigated whether there is evidence of the possible occurrence of earnings management practice through provisions related to a litigation process. Since it was an exploratory study, we also tried to understand the peculiarities of the Brazilian tax legislation and the mechanisms used in earnings management practices. The accounting procedure No 25 issued by the Accounting Standards Board (ASB), that is, ASB No 25 regulates the accounting of provisions and contingent assets and liabilities and is a translation and adaptation of the International Accounting Standard No. 37 (IAS 37). It is the document upon which this study was based. We also sought to understand whether after the introduction of the Accounting Standards Board No. 25 there was an increase in the disclosure of accounting information on provisions and contingencies by companies. As a final contribution we explored possible mechanisms to constrain earnings management practices. The study is exploratory and triangulates information from lawyers and auditors, exploring the existence and the mechanism of earnings management through a litigation process and the actions to be taken for its mitigation. The study period is 2006 - 2010, which includes the introduction of act 11631 that incorporates changes to the corporations law and IFRS standards in Brazil. The provisions originated in administrative and judicial tax demands are elements that can be handled by the institutions that use the subjectivity in the interpretation and application of legislation by users and in procedures, in order to improve or worsen the accounting result, thus configuring earnings management practice. The research has shown that due to the intricate tax system in Brazil there is the possibility of earnings management via the constitution of provisions or not. It was also confirmed that after the issuance of ASB No. 25 the companies increased the disclosure of information on provisions, liabilities, assets and contingents.
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Gonzáles, Laca Carlos Miguel, and Faustor Carmen Jahaira Denise Villanueva. "Analysis of Article 159 of the Tax Code: An Appointment on the Denaturalization of the Counterclaim." Derecho & Sociedad, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/118818.
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In the first part of the article, a development for the concepts of provisional remedies and real or personal property bond and covering loss and damage, is proposed, under the Constitutional Court and our national doctrine view; as well as the scope of the first as a fundamental right, and second as a condition of execution. On the following part of the paper, the inclusion and the subsequent amendments to the article 159° of Tax Code is exposed, also its scopes and reasons. Finally, a possible modification of the article, that respect state´s raising goals and due process citizens’ right, is proposed.El presente artículo desarrolla los conceptos de medida cautelar y contracautela, a la luz de lo resuelto por el Tribunal Constitucional y lo establecido por nuestra doctrina, así como los alcances del primero como derecho fundamental y del segundo como requisito de ejecución. De la misma forma, se analiza los alcances de la incorporación del artículo 159° del Código Tributario, mediante Decreto Legislativo N° 1121, y su modificatoria a través de la Ley N° 30230. Finalmente, se propone una posible modificación al mencionado artículo, de conformidad con los fines recaudatorios del Estado y el derecho a la tutela jurisdiccional efectiva de los administrados.
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Souza, Claudio dos Passos. "Processo administrativo tributário : possibilidade de questionamento judicial das decisões contrárias ao Estado." Programa de Pós-Graduação em Direito da UFBA, 2008. http://www.repositorio.ufba.br/ri/handle/ri/10702.
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No âmbito federal o Processo Administrativo fiscal é regulamentado pelo Decreto nº 70.235/72 e tem por finalidade proporcionar um aperfeiçoamento do lançamento tributário definindo com maior segurança e precisão o credito tributário que o fisco entende ser devido. O julgamento de processos fiscais é feito por órgãos integrantes do Ministério da Fazenda que são as Delegacias de julgamento os Conselhos de Contribuintes e a Câmara Superior de Recursos Fiscais ficando evidente que o processo administrativo fiscal se constitui em procedimento interno de controle da legalidade dos atos da Administração Pública Federal. Sendo assim apesar das divergências doutrinárias o entendimento majoritário sempre foi o de que as decisões definitivas dele decorrentes e que fossem favoráveis ao contribuinte o desoneravam da obrigação tributária em discussão tendo em vista que a própria Administração Pública teria reconhecido a ilegalidade de seu ato consubstanciado através do Auto de Infração ou da Notificação Fiscal de Lançamento. Entretanto este pensamento foi questionado através do Parecer nº 1.087 da Procuradoria Geral da Fazenda Nacional (PGFN) de 23 de agosto de 2004 que entendeu ser possível juridicamente que uma decisão final favorável ao contribuinte proferida em Processo Administrativo fiscal fosse questionada no Poder Judiciário através da Procuradoria Geral Fiscal Nacional (PGFN). Em 25 de outubro de 2004 foi publicada a Portaria nº 820, que definiu as circunstâncias em que a PGFN poderia impetrar a hipotética ação. Tal situação reacendeu a discussão sobre o tema e tem suscitado grandes debates na área jurídica questionando-se inclusive, a constitucionalidade tanto do Parecer quanto da Portaria e originando o estudo a que se propõe o presente trabalho que ao final visa responder se é legalmente possível o Estado buscar a revisão de decisões administrativas em caráter definitivo na área tributária que lhe sejam desfavoráveis através do Poder Judiciário.
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Lopes, Ana Teresa Lima Rosa. "O contencioso tributário sob a perspectiva corporativa: estudo das informações publicadas pelas maiores companhias abertas do país." reponame:Repositório Institucional do FGV, 2017. http://hdl.handle.net/10438/18226.
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O presente trabalho traz um levantamento empírico do contencioso tributário brasileiro a partir de dados obtidos nas Demonstrações Financeiras e Formulários de Referência publicados pelas trinta maiores companhias abertas brasileiras no ano de 2014. Pode-se dizer que a principal contribuição almejada com este trabalho é apresentar um levantamento de dados objetivos sobre os pontos de instabilidade jurídica do sistema tributário, trazendo, assim, um pouco de luz à obscuridade que permeia a relação jurídico-tributária. A realização de pesquisa empírica sobre o assunto tem como pressupostos o questionamento da cultura formalista do direito tributário e a aposta de que para mudar a realidade, o primeiro passo é entendê-la. O levantamento das informações fiscais divulgadas pelas companhias mostra que há muitos aspectos da relação jurídico-tributária entre empresas e Estado que não são divulgados. Contudo, o pouco que foi possível identificar, demonstrou que há pontos de instabilidade nesta relação, cuja consequência está exprimida no vultoso valor envolvido nos processos administrativos e judiciais atualmente em curso sobre matéria tributária. De modo geral, este trabalho corrobora com a percepção de que há um ambiente de incerteza quanto à forma e conteúdo da divulgação de informações contábeis pelas companhias. As inconsistências verificadas, somada às idiossincrasias do sistema tributário brasileiro, torna recomendável a discussão acadêmica e profissional sobre a criação de regras específicas para a mensuração, reconhecimento e divulgação dos passivos contingentes e provisões decorrentes de processos de natureza tributária. Além disso, o mapeamento das disputas relevantes e aprofundamento das questões de mérito ali envolvidas permite indicar que o problema do alto grau de litigiosidade deve ser pensado para além da técnica da regra tributária. Ainda que existam ineficiências que possam ser melhoradas no plano normativo, este estudo mostra que a busca por parâmetros interpretativos das regras tributárias atualmente em vigor pode ser uma alternativa viável para o estancamento da litigiosidade em matéria fiscal.
This work presents an empirical research about tax litigation based on data obtained in the Financial Statements and Reference Forms published by the thirty largest Brazilian publicly traded companies in 2014. The main contribution sought by this work is to present data regarding the points of legal instability of the Brazilian tax system, thus bringing a little light to the obscurity that permeates the legal relationship between State and taxpayer. In furtherance of this result, this work is based on the assumption of questioning the formalist culture of tax law and stakes that in order to change reality; the first step is to understand it. The information disclosed by the companies show there are many aspects of the legal relationship between State and taxpayer that remain shadowy. Nonetheless, the aspects that could be identified through this empirical research showed there are lots of points of instability on such relationship, expressed in the large amount involved in administrative and judicial proceedings underway on tax matters. In a general perspective, this work corroborates the perception that there is an environment of uncertainty as to the form and content of disclosing accounting information by the companies. The inconsistencies verified therein, coupled with the idiosyncrasies of the Brazilian tax system, make it advisable to discuss, in both academic and professional levels, the creation of specific rules for the measurement, recognition and disclosure of contingent liabilities and provisions arising from tax matters. Furthermore, by means of mapping the relevant disputes with regard to judicial and administrative proceedings on tax matters and deepening the analysis of the merits of the issues therein, this work suggests that the problem of high degree of litigation should be addressed beyond the normative technique of the tax rule. Although there are inefficiencies that can be improved at the normative level, this study shows that the search for consistent interpretative parameters of the tax rules currently in force can be a viable alternative in order to stagnate the escalation of tax litigation.
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Kessentini, Adlene. "L'égalité des parties dans le contentieux fiscal ?" Thesis, Paris 2, 2019. http://www.theses.fr/2019PA020064.
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Le contentieux fiscal souffre de plusieurs lacunes qui remettent en cause l’importance de son rôle dans la société civile en tant que mécanisme de régulation de la tension pouvant naître entre l’État et les individus à l’occasion de l’opération d’imposition. La plupart de ces faiblesses peuvent être expliquées par l’existence de règles conçues pour favoriser l’administration au détriment du contribuable dans le cadre de l’affrontement entre ces deux protagonistes au sujet de la légalité des impositions. Cet état des lieux est incontestable, bien que la situation entre ces deux protagonistes ait évolué au fil des réformes et surtout depuis le passage au modèle étatique dénommé « État post-moderne » qui se caractérise par la revalorisation de l’individu et l’atténuation de l’idée de l’imperium étatique dans toutes les branches du droit y compris leurs « tranches » contentieuses. En effet, la procédure contentieuse qui doit être suivie par les parties, tant dans le cadre de la réclamation préalable que dans la phase juridictionnelle, contient plusieurs règles qui placent le titulaire de la puissance publique dans une position avantageuse au détriment du contribuable. De même, les règles qui s’appliquent dans le cadre du débat sur le fond du litige fiscal contiennent des mécanismes et techniques qui permettent à l’administration de faire triompher efficacement des prétentions tendant à obtenir le maintien des impositions sur celles du contribuable, qui elles visent davantage à la décharge ou la réduction des impositions. Cette situation caractéristique d’une inégalité des parties dans le contentieux fiscal mérite d’évoluer pour se mettre au diapason avec la culture issue de la nouvelle gouvernance fiscale émergeant depuis le début du XXIème siècle qui métamorphose la relation fondamentalement objective entre l’administration et le contribuable. Une telle évolution s’accommoderait également avec l’émergence d’un standard de règles inhérent à tout procès allant à l’encontre de tout favoritisme d’une partie au détriment de l’autre sous l’influence du droit processuel et des règles supra-législativesTax litigation suffers from several drawbacks which questions about the importance of its role in civil society as a mechanism for regulating the tension that may arise between the State and individuals during the procedure of taxation. Most of these flaws can be explained by the existence of rules designed to favor the Administration over the taxpayer as a part of this confrontation which concern the legality of the taxes. Despite this indisputable verdict, the relationship between these two protagonists has been evolved throughout several reforms and, significantly, since the transition to the state model called “post-modern state”. This model is characterized by the revaluation of the individual and the attenuation of the idea of “state imperium” in all branches of law including their litigious proceeding. Indeed, the litigation procedure which has to be followed by the applicant, both in the context of the previous complaint and in the jurisdictional phase, contains several rules which place the administration in an advantageous position to over the taxpayer. Similarly, the rules relating to the substance of the dispute that apply in the context of the debate contain mechanisms and techniques that allow the Administration to effectively defeat claims to maintain the taxation of the taxpayer, which rather aim at the discharge or the reduction of taxes.This situation highlights an inequality of the parties throughout the tax dispute. Therefore, an evolution is desirable in the aim to be in line with the new culture which results from the new fiscal governance emerging since the beginning of the 21st century and which metamorphoses the fundamentally objective relationship between the Administration and the taxpayer. Such a development would also be compatible with the emergence of a standard of rules inherent to any process that runs against any favoritism of one party over the other, under the influence of procedural law and the super legislative rules
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Havlová, Berenika. "Právní postavení Lichtenštejnska v rámci Evropského hospodářského prostoru." Master's thesis, Vysoká škola ekonomická v Praze, 2016. http://www.nusl.cz/ntk/nusl-261758.
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The thesis defines legal status of Liechtenstein in the European Economic Area. It is divided into three consecutive chapters. The first chapter consists of two parts - general and economic characteristics of Liechtenstein. The general characteristic is based on the author's experience supported by scientific literature, while economic subchapter is based largely on statistical data. The second chapter focuses on the legal status of Liechtenstein and its position on international scene. The position is viewed from two perspectives, which affects it the most. First, from the perspective of participation in selected international organizations and second, the influence of close relationship with Switzerland. The last chapter analyses international litigation to which Liechtenstein is a party. The aim of this thesis is to define the legal relations of Liechtenstein, which forms its position, using the methods of analysis.
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Rasamoelina, Zoarinandrasana. "Les transformations du contentieux fiscal à Madagascar." Thesis, Paris 1, 2016. http://www.theses.fr/2016PA01D050.
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Instrument juridique au bénéfice des parties, aussi bien pour les contribuables que pour l’administration fiscale, le contentieux fiscal constitue, en principe, un observatoire propice pour mesurer la répercussion, la portée et l’efficacité de la gestion publique de l’impôt. Il sert à éprouver, dans sa généralité, la politique fiscale. C’est en ces termes que sa conceptualisation en tant que mécanisme de régulation et de modélisation s’observe. Un tel concept est essentiellement basé sur le prisme de l’indépendance du juge, de la séparation des pouvoirs, de l’effectivité du contrôle juridictionnel et par déduction de la protection des droits et garanties des parties. Pourtant, la réalité demeure très éloignée de ces aspirations. En effet, le contentieux fiscal se caractérise par trois traits significatifs, à savoir : le comportement de suprématie de l’administration fiscale, le dessaisissement du juge et par la même occasion la dépossession de la Justice au bénéfice d’un système de contractualisation de l’impôt, et enfin le déclin du droit des contribuables. Aux nombreuses prérogatives de puissance publique, que la loi attribue à l’administration fiscale, s’ajoutent les pouvoirs discrétionnaires, conférant à cette dernière un statut quasi juridictionnel. Ainsi, sur fond d’un légicentrisme exacerbé et sur une mauvaise appréhension de la notion d’intérêt général et de celle du juge de l’impôt, s’institue un véritable système atrophié, marqué par le renoncement du juge à son pouvoir et par l’affermissement du pouvoir de l’administration. Nous assistons à un débordement du pouvoir judiciaire par d’autres instances régulatrices. Le contentieux échappe au juge en faveur de l’administration, et ce dans une indifférence anormale qui s’apparente davantage à une connivence latente. Il est plus que jamais indispensable de remettre en question ces évidences, qu’elles soient liées au droit substantiel ou au droit processuel, et d’en finir avec cette forme de doxa juridique qui suppose que les règles sont immuables. De surcroit, la fiscalité est soumise au mouvement de la conjoncture, le système contentieux se doit, lui aussi, d’être évolutif, afin d’apporter des solutions juridiquement cohérentes, économiquement logiques et équitables. L’évolution et la transformation du contentieux doivent ainsi s’inscrire dans une judiciarisation de toutes les phases de la procédure. Le but est de permettre un contrôle effectif, neutre et objectif, d’éviter les décisions arbitraires ou même inégalitaires et enfin d’équilibrer les droits du contribuable et les prérogatives de l’administrationAs a legal instrument for each litigant, both for the taxpayer and for the tax administration, tax litigation is, in theory, an enabling observatory to measure the impact, the extent and the effectiveness of public policy concerning taxation. From a general point of view, it used to test in generally tax policy. Those are the terms under which its conceptualization as a control and modeling mechanism may be undertaken. Such efficient concept is essentially based upon the prism of judicial independence, separation of powers, effectiveness of judicial review, and by inference, protection of the rights and guarantees of the parties. However, the reality is very far removed from these aspirations. Indeed, tax litigation is characterized by three significant features, namely the supremacy of tax administration, the judge’s renunciation and divestment, in the same time the dispossession of Justice in favor of recourse to the contract-based solutions and the increased use of Alternative Dispute Resolution, and finally the decline of taxpayers right. To the prerogative of the public authority, expressly conferred by law upon the tax authority, are added the discretionary powers, which confers a quasi-judicial status. This way, amid a heightened legicentrisme and a misunderstanding of the concept of general interest and the role of tax judge, it results in the establishment of a real atrophied system, characterized by the judge’s renouncing his role and by the expansion of authorities’ administration. It is disappointing to note an overflow of the judiciary by other regulatory agencies. The litigation is outside judge’s control in favor of the administration, with complete indifference and appears to be more like a latent connivance. It is highly necessary to challenge things that are taken for granted, both the substantive and the procedural norms, and to deal with this form of legal orthodoxy which assumes that the rules are immutable. Furthermore, tax changes with the economic scene in constant flux, the litigation system must be also scalable, to provide legally consistent solutions, economically logical and equitable nonetheless. The evolution and the transformation of litigation should be a part of the legalization of all phases of the procedure. The aim is to enable effective control, neutral and objective, to avoid arbitrary decisions, even unequal, and finally to balance taxpayer rights and prerogatives of the administration
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Bendzius, Frederico. "Precedentes no Novo Código de Processo Civil e sua repercussão no contencioso tributário-fiscal da procuradoria geral do Estado de São Paulo." reponame:Repositório Institucional do FGV, 2017. http://hdl.handle.net/10438/18300.
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Nesta pesquisa, objetiva-se tratar da aplicação do precedente judicial nas atividades da Administração Tributária. Mais especificamente, pretende-se debater como a Procuradoria Geral do Estado de São Paulo pode orientar suas ações após a fixação de teses em precedentes. O tema é relevante em razão do princípio da isonomia tributária e para a redução da litigiosidade. Utilizei como método o exame da literatura e da legislação, além da experiência institucional da Procuradoria Geral da Fazenda Nacional. Concluí que a valoração dos precedentes deve ser incorporado ao quotidiano da Procuradoria Geral do Estado de São Paulo a fim de dar mais eficiência à sua atividade.
In this research, the objective is to deal with the application of judicial precedent in the activities of the Tax Administration. More specifically, it intends to discuss how the Attorney General's Office of the State of São Paulo can guide its actions after setting theses in precedents. The issue is relevant due to the principle of tax isonomy and to the reduction of litigation. I used as method the examination of the literature and legislation, in addition to the institutional experience of the Attorney General of the National Treasury. I concluded that the valuation of precedents should be incorporated into the daily routine of the Attorney General's Office of the State of São Paulo in order to give more efficiency to its activity.
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Belšánová, Ivana. "Limity profesní odpovědnosti ve vztahu k profesím auditora, daňového poradce a účetního pracovníka s ohledem na povinnost mlčenlivosti." Master's thesis, Vysoká škola ekonomická v Praze, 2017. http://www.nusl.cz/ntk/nusl-360589.
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The thesis "Limitations of professional liability in relation to the professions of auditor, tax adviser and accountant with regard to the duty of confidentiality" focuses on a more detailed elaboration of the selected specific segment of professional liability of the given professions, on the legal and ethical obligations in the field of confidentiality and the possibility of its breaking. The introductory part of the thesis deals with confidentiality in terms of historical development and its importance in the present. Further, it outlines the area of moral and ethical responsibility, legal liability in general, and confidentiality as a specific duty. The concept of confidentiality of the professions of auditors, tax advisers and accountants represents the core of the presented work. The duty of confidentiality of the profession of auditors is significantly influenced by the public interest in the presented information in the form of opinion on the financial statements of the audited entities, and thus the possibilities of the legally supported breaking of this obligation are the most extensive, as evidenced by the amendment to the Act on Auditors, effective from 1 October 2016. The duty of confidentiality of the tax adviser has until recently been strictly defined on a legal basis. The change was brought by the Supreme Court's case law in November 2015, which by comparing the principally equivalent conditions for the exercise of legal liability in the area of confidentiality of the tax adviser and attorney, also deduces the similarities of competencies of both professions in cases of breaking the confidentiality. The accounting profession is not regulated by law, and therefore the confidentiality obligation is also not legally enforceable. However, professional certified accountants are required to comply with the Code of Conduct issued by the Professional Chamber. The final part of the thesis focuses on comparing the duty of confidentiality of the selected professions of auditors, tax advisers and professional accountants with the attorney-at-law profession.
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Medeiros, Ronaldo Raimundo. "A (in)segurança jurídica do contencioso administrativo tributário estadual: estudo de casos sobre a aplicação da súmula nº 166 nas saídas por transferência de mercadorias." reponame:Repositório Institucional do FGV, 2015. http://hdl.handle.net/10438/14249.
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A partir da constatação da falta de uniformidade das decisões do contencioso administrativo tributário estadual (CATE) sobre um mesmo tema específico do ICMS, a exemplo das saídas por transferência de mercadorias entre estabelecimentos pertencentes ao mesmo titular, cuja normatividade legal vigente se encontra positivada no inciso I do art. 12, da Lei Complementar nº 87/96, este trabalho objetiva estudar, por meio de uma pesquisa qualitativa de jurisprudência realizada junto aos Tribunais Administrativos Estaduais, que disponibilizam suas decisões na rede mundial de computadores (internet), se a existência de jurisprudência sumulada do Superior Tribunal de Justiça (STJ) sobre esse tema controvertido do ICMS (Enunciado de Súmula nº 166) contribuiu para dar uma maior segurança jurídica à dimensão crítica da relação jurídica tributária, no sentido de tornar mais previsível e isonômica a lide administrativa de natureza tributária. De acordo com a amostra de jurisprudência administrativa obtida de diferentes Tribunais Administrativos Estaduais, podemos concluir que a existência de jurisprudência sumulada do STJ não está tendo, majoritariamente, eficácia no CATE, pelos argumentos mais diversos classificados e agrupados no presente trabalho, os quais servirão, juntamente com a dogmática jurídica existente sobre o tema, como alicerce à resposta normativa a ser sugerida de como as justiças administrativas estaduais deveriam interpretar a jurisprudência dos Tribunais Superiores (STF e STJ), com vista a tornar o contencioso administrativo tributário mais previsível e isonômico, e, desta forma, contribuir para a efetivação da tão almejada justiça fiscal.
Based on the observation of lack of uniformity of decisions of the state administrative tax litigation (CATE), on the specific subject of the incidence of ICMS, like the outputs for transfer of goods between establishments belonging to the same owner, whose current legal normativity is positively valued in item I of Article 12 of Complementary Law No. 87/1996, this study aims at investigating, by means of case through a qualitative research of jurisprudence held with the State Administrative Courts, which provide their decisions on the world wide web (internet), the existence of precedent jurisprudence of the Superior Court of Justice – (STJ), about this controversial subject of ICMS (Statement of Precedent No. 166),contributed to give greater legal certainty to the state tax administrative proceedings, in making the most predictable administrative litigation and isonomic in relation to the decisions of those Fiscal Administrative Justice Organs of second instance. According to the sample of administrative jurisprudence obtained from different State Administrative Courts, we can conclude that the existence of this precedent jurisprudence of the STJ is not having, mainly, effectiveness in CATE, by the most diverse arguments grouped and classified in this work, which will serve, along with the existing legal doctrine on the subject as the foundation for the normative answer to be suggested on how the state administrative justices should interpret the jurisprudence of the Superior Courts (STF and STJ), in order to make the tax administrative litigation more predictable and isonomic, and thus contribute to the realization of the so aspired tax justice.
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Haloui, Khalil. "Les garanties du contribuable dans le cadre du contrôle fiscal en droit marocain." Phd thesis, Université de Grenoble, 2011. http://tel.archives-ouvertes.fr/tel-00683303.
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La thèse a pour objet d'examiner la question cruciale des garanties légales du contribuable face aux prérogatives importantes de contrôle fiscal dévolues à l'administration à la suite de la mise en place du nouveau régime d'imposition déclaratif au Maroc. Elle se propose alors de rendre compte de l'état du droit positif sur cette problématique et de répondre à la question de savoir dans quelle mesure les nouvelles procédures de contrôle fiscal instituées permettent-elles de protéger les droits du contribuable vérifié.
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Rabottin, Florent. "La protection des technologies étrangères en Chine." Thesis, Angers, 2014. http://www.theses.fr/2014ANGE0044.
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La participation étrangère dans de nombreux secteurs clés continuant de croitre , le gouvernement chinois a pris conscience du potentiel de la protection des droits de propriété intellectuelle. Les innovations sont un des éléments clés pour le développement durable des économies et nécessitent une protection adaptée. Cependant , les opérations sur la technologie sont soumises à un cadre juridique complexe qui peut varier d'un droit étranger de façon importante. Ainsi , cette étude , à travers l' analyse du régime de la technologie , a pour objectif d' exposer les difficultés mais également les opportunités offertes par le droit chinois à l' investisseur étranger. L' élaboration de dispositions proches des standards internationaux ne doit pas masquer les spécificités propres d' une législation au service du développement économique. Il s' agira d'aborder les différents moyens de protection, que ce soit par le brevet ou le secret d' affaire; mais également les opérations de droit des sociétés , les contrats sur la technologie et les incitations fiscales relatives aux activités d'innovation sur le territoire de l' Empire du Milieu. On envisagera ces thèmes tout en appréhendant les considérations pratiques inhérentes aux opérations d' affaires en Chine, tant pour les techniques de protection que pour les moyens en défense de des droits sur la technologieAs foreign participation in many key sectors continues to grow, the Chinese government has become more and more aware of the potential of intellectual property rights' protection in China. Innovation is one of the key elements for the sustainable development of economies. The legislation regarding technology is very complex, thus foreign law practitioners must understand it thoroughly, if they want to avoid pitfalls. Given that applicable Chinese laws can differ from foreign law in important ways, technology legislation in China is fraught with traps for the unwary.Thus, this study aims at highlighting , through the analysis of the technology law system ,the difficulties but also the opportunities offered by Chinese law to a foreign investor.The drafting of provisions in line with international standards should not undermine the specificities of provisions designed for economic development. These analyses will address the various means of protection, either by patent or trade secret ; but also the operations of corporate law , technology contract and tax incentives on innovation activities in China. These issues will be tackled while also looking at practical aspects that are inherent to business operations in terms of both protection techniques and means of enforcing technology rights
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角田, 伸広, and Nobuhiro TSUNODA. "移転価格税制における多国籍企業への独立企業原則適用の困難性とその解決 : 租税訴訟での課題と租税条約上の相互協議での解決可能性の考察." Thesis, 一橋大学, 2011. http://hdl.handle.net/10086/23221.
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Okou, Urbain. "La sécurité juridique en droit fiscal : étude comparée France-Côte d’Ivoire." Thesis, Paris 5, 2014. http://www.theses.fr/2014PA05D022.
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La France et la Côte d’Ivoire sont deux États qui présentent des similitudes dues principalement à leur passé colonial commun ; mais il s’agit également de deux États qui présentent de nombreuses différences tenant notamment à leur niveau de développement. Si les règles de droit fiscal substantiel au sein de chacun de ces deux États permettent d’étudier les exigences de sécurité juridique et les moyens par lesquels elles sont prises en compte, c’est en réalité la pratique processuelle qui révèle de manière plus substantielle l’effectivité de cette prise en compte. Au demeurant, la problématique de la sécurité juridique n’est bien souvent réduite qu’aux seules exigences d’accessibilité, de stabilité ou de prévisibilité de la norme. Ce qui témoigne au fond d’une approche partielle de l’exigence de sécurité juridique tendant à en limiter l’étude à la qualité formelle et à l’évolution temporelle des actes juridiques. La prise en compte d’une pluralité de systèmes juridiques différents révèle cependant que la notion de sécurité juridique ne ramène pas nécessairement à un contenu univoque. En effet, l’insécurité juridique ne s’exprimant pas toujours en des termes identiques d’un cadre juridique à un autre, la sécurité juridique pourrait se révéler polysémique, voire antinomique, d’un système juridique et fiscal à un autre. Ainsi donc, au-delà de la norme, la sécurité juridique s’applique également au cadre et au système juridique ainsi qu’à la pratique juridique et juridictionnelle. La sécurité juridique apparaît donc, en droit fiscal, comme l’expression de la fiabilité d’un cadre et d’un système juridiques et fiscaux, à travers des normes de qualité offrant une garantie d’accessibilité et d’intelligibilité ainsi que des moyens pour le contribuable de bâtir des prévisions ou donner satisfaction à celles légitimement bâties. En outre, au-delà du cadre imposé par la présente thèse, il convient d’aborder la problématique de la sécurité juridique dans une approche moins restrictive, afin de ne point en occulter les aspects historiques, philosophiques, sociologiques et juridiques essentiels à une étude d’ensemble de la questionFrance and Côte d'Ivoire are two countries with similarities mainly due to their common colonial past; but they are also two countries with many differences especially due to their level of development. While the rules of substantive tax law within each of these two countries make it possible to study the requirements of legal certainty and the means whereby they are taken into account, it is actually the procedural practice that reveals more substantively the effectiveness of this consideration. It should also be noted that the issue of legal certainty is often reduced to the only requirements of accessibility, stability or predictability of the standard. This actually reflects a partial approach to the requirements of legal certainty that tends to limit its study to the formal quality and the temporal evolution of legal acts. Taking into account a plurality of different legal systems, however, reveals that the concept of legal certainty does not necessarily lead to an unequivocal content. Indeed, since legal certainty is not always expressed in identical terms from one legal framework to another, legal certainty could prove to be polysemic, or even antinomic, from one legal and fiscal system to another. Thus, beyond the norm, legal certainty also applies to the legal framework and system as well as to the legal and judicial practice. Legal certainty thus, appears in tax law, as an expression of the reliability of a legal and fiscal framework and system, through quality standards, offering a guarantee of accessibility and intelligibility, as well as means for the taxpayer to build predictions or satisfy those legitimately built. Moreover, beyond the framework imposed by the present dissertation, it is important to deal with the problem of legal certainty in a less restrictive way, so as not to obscure the historical, philosophical, sociological and legal aspects essential to a holistic study of the issue
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CHEN, YUEH HUNG, and 陳岳鴻. "A Study on Litigation Performance Difference of Tax Litigation Agent." Thesis, 2010. http://ndltd.ncl.edu.tw/handle/94172697420404022005.
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碩士東海大學
會計學系
98
A Study on Litigation Performance Difference of Tax Litigation Agent Abstract Advisor: Dr. Lin, Hsiu Feng Graduate Student Name: Chen, Yueh Hung Graduate Student No.: G97430023 This paper examines the differences in litigation performance between attorneys and accountants in Taiwan who hold tax litigation qualifications. In contrast to using a single performance indicator to assess litigation efficiency or litigation effect, in this study we adopted the concept of negative exponential function combined with litigation efficiency and litigation effect to develop the litigation performance indicators. These performance indicators will then be integrated to assess the differences in litigation performance of tax litigation agent. In this paper, we used a dataset of income, business, estate, and gift tax lawsuits from the supreme administrative court and high administrative court during the period of 2006 t0 2008. Empirical evidence indicated that the dataset was free from the self-selection effect as an endogenous switching model was used. Furthermore, this paper provided peer exploratory study on the process of agent selection decision-making among taxpayers. Empirical evidence suggests that the litigation performance of accountants exceeds those of attorneys in all three tax lawsuits. Among the tax lawsuits between accountants and attorneys, accountants has the best litigation performance in the area of business tax lawsuit while attorneys are weakest in that area. Furthermore, relative empirical results show the high-low amount of lawsuit has significant differences between attorneys and accountants that could clarify the discrepancy between the supreme administrative court and high administrative court. The supreme administrative court emphasize trail on law rather than trial on matters of fact, so accountants could not exert effect on professional skill at the supreme administrative court, but the income tax act is more complex and is related to the GAAP, therefore, accountants have better litigation performance of income tax lawsuit than attorneys at the supreme administrative court. Finally, peer exploratory study indicates that taxpayers select attorneys within tax lawsuits of business and estate and gift over accountants. There are no significant differences between the selection of accountants over attorneys for income tax lawsuit. Keywords: Tax litigation, Litigation efficiency, Litigation effect, Certified Public Accountant, Attorneys, Endogenous switching model.
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Chen, Tai-Cheng, and 陳太正. "A Study Of Income Tax Estimation And Tax Litigation." Thesis, 2011. http://ndltd.ncl.edu.tw/handle/29958641076369735601.
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碩士國立中正大學
會計資訊與法律數位學習碩士在職專班
100
Tax estimation is a method adopted by the tax administration to establish the factual elements relating to tax obligations (i.e. the taxable income) when imposing tax penalties (especially during the tax certification stage), based on circumstantial evidence instead of direct information. If the tax administration has exhausted its investigation efforts but remains unable to determine the taxation base, or if the tax calculation proves to be impossible or is too costly to conduct, then the estimation approach can be adopted as an alternative in order to facilitate the taxation process, thereby securing treasury revenues and the nation’s right to tax. Tax estimation does not relieve the tax administration’s duty to perform an investigation, and is applicable only when the taxpayer has not fully co-operated in reporting tax duties, thereby rendering taxation difficult or even impossible. Under such circumstances, the tax administration may adopt the estimation approach to lessen its investigation burden. Therefore the tax estimation approach must satisfy the following criteria, unless otherwise permitted by tax laws: 1.The taxpayer has violated the duties to co-operate: the Judicial Yuan has made clear in Interpretation No. Shih-218 that the taxation base can be estimated only if the taxpayer has violated the duties to co-operate. Section 83 of the Income Tax Law further specifies that the tax administration may calculate tax based on the information it has gathered or that is based on the profitability of industry peers, only if the taxpayer has not presented the necessary accounts or documents to support the reported taxable income. 2.When it becomes impossible or unfeasible to conduct an investigation on taxable facts: the tax administration’s obligations to investigate are not replaced by the taxpayer’s duties to co-operate; the tax administration can be relieved of its obligations to investigate only if all available investigation methods fail to determine the appropriate amount of taxes, or when no possibility of investigation is expected. The scope of this study is focused only on the income taxes of profit-seeking enterprises, where the tax estimation approach has given rise to many disputes, especially towards taxpayers’ failures in exercising duties to co-operate, as required in Section 83 of the Income Tax Law, and for which the tax administration has determined their taxable income based on the information it has gathered or based on the profitability of industry peers. This study utilizes accounting principles as the primary approach, laws as the secondary approach, and accounting diagrams as support to explain this subject. The study also incorporates a literature review, inductive reasoning, and comparisons to discuss the implications of tax estimation through both theoretical and practical perspectives. The relevant laws and interpretations thereof are organized, analyzed, compared, and discussed to provide the theoretical basis of the proposed recommendations. Furthermore, the study discusses the most prevalent issues pertaining to tax estimation, which may serve as useful references for future regulatory amendments.
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Yung-yang, Cheng, and 張永煬. "Research On the Influence of Tax Attorney System On Tax Administration in R.O.C." Thesis, 1999. http://ndltd.ncl.edu.tw/handle/39489233383159422734.
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碩士中華大學
工業工程與管理研究所
87
As a result of the development of economy and the progression of operating in Taiwan (in our country) these years, the rapid increment of the profit seeking enterprises organizations and activities (business) of taxation as well as related tax decrees and interpretative rulings increase with year. Nevertheless it is found that the rated of mistake is quite considerable in varied return cases and applying forms made by taxpayers, which forces the authorities spending a profusion of people and time to engage in audit. This is because taxpayers are not well up in taxation statutes. If the auditing and supplying jobs can be done by professional agents, meanwhile regulating and managing them legally and systematically, the rate of mistake shall fall to the lowest point, and the right of taxpayers would be protected. It is thus evident that the agent system is assuredly a product of social advance and even more the expectation of the public. This research is to discuss the system of agent taxation nowadays in the round. To begin with introducing system of agent taxation if Japan, United States, and Korea for comparison and reference. Secondly, to make an analysis and a comparison on our system of agent taxation, System of booking for client and system of taxation at the present day, realizing advantages and disadvantages of each system. And the consequence tells us the urgency of legislation and the need of system establishment of system of agent taxation. Furthermore I’d designed a questionnaire to reckon up and to analyze, discussing defects and functions on the system. The analyzing conclusion gives high recognition on establishing system of agent taxation, and that agents obtain professional status through examinations is also in the affirmative. Therefore we look forward to seeing the authorities to legislate as soon as possible; confirming the legislative source and completing the system establishment to bring the system of agent taxation into play. In this way, the taxation job would be raised their service qualities and livying efficacy; at the same time, to enhance the willing of taxpayers and to set up a bridge (connection) between the authorities and taxpayers through mutual communication, hence, it could achieve the target of increasing tax revenue of the government as well as relieve the levying-cost burden.
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Yi-ChihLin and 林易志. "A Study on The Rights and Obligations of Litigation Attorney in Mandated Contract." Thesis, 2018. http://ndltd.ncl.edu.tw/handle/v8568n.
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Liou, Tzuu-Jiun, and 劉祖君. "The Impact on Tax Litigation by Taxpayers’ Representatives." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/38377637282962996589.
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碩士國立臺北商業大學
會計財稅研究所
103
Legal representation has no bearing on the civil litigation case outcomes. Does tax litigation have the same problem? Our study use the verdicts of Taiwan High Administrative Court and District Court from 2011 to 2013 to do empirical research. Results show whether the taxpayers are individuals or not, represented by lawyers can enhance the probability of obtain victory. Corporate entities have higher chance to winning than individuals when representation by accountants. What’s more, there is no evidence suggests that represented by lawyers and accountants at the same time would favor the taxpayers.
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CHUAN, TSAI HSIU, and 蔡銹娟. "THE STUDY OF THE ANALOGIE IN PRACTICAL TAX LITIGATION." Thesis, 2008. http://ndltd.ncl.edu.tw/handle/46787166025367025421.
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Chen, Pin-Rong, and 陳品蓉. "Tax Penalty Discretion and the Taxpayer Rights Protection – Observation on Tax Appeal and Litigation." Thesis, 2018. http://ndltd.ncl.edu.tw/handle/658gjm.
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碩士國立臺北商業大學
財政稅務系碩士班
106
The penalty for taxpayer’s non-compliance shall be determined in accordance of law. However the law also grants the tax authority the power of discretion. Taiwan’s Ministry of Finance has promulgated a “Reference Table for Discretion of Tax Fines and Multiples” in order to maintain the adequacy of penalties, reduce the adjudication workload of tax officers, and avoid inappropriate penalties. However, could the tax fine adjudicated per the “Reference Table” be 100% correct and suitable? Does the tax authority apply the extraordinary item of the Reference Table that can reduce the tax penalty in order to reflect the special situations in the individual cases? How frequently does the tax authority adjudicate and reduce tax penalty by application of the extraordinary item? After gathering and analyzing data from related articles, journals and theses, dissertations regarding the theory and practice of penalty adjudication and collating the data of the court decisions and appeal decisions in the last five years from the government’s open websites, this study concluded important reference data. In addition, this study conducted a questionnaire on the frequency of use of extraordinary item of the instructions table with the tax officers as respondents. The court decisions and appeal decisions show that the tax authority only adjudicates the penalty amount according to the “Reference Table”. Such a practice may be lawful, but may not necessarily fulfill the fairness of adjudication. In practice, tax officers should further consider the gravity of non-compliance and the effects of and the benefits gained from the violation. However, the questionnaire demonstrates that most tax officers simply determine the administrative fine according to the multiplier in the table during adjudication. This study suggests the tax authority should gather special cases for reference of tax officers to carry out their discretion. Also in some fringe cases we consider the opinion of taxpayer rights protection ombudsmen shall be included and presented during adjudication price.
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Laiw, Sue-yue, and 廖素玉. "The Performance of deducing tax litigation on National Tax Administration of Central Taiwan Province." Thesis, 2009. http://ndltd.ncl.edu.tw/handle/t6f6fb.
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碩士臺中技術學院
事業經營研究所
97
When facing the limit of resources, the pressure of achievements, the various demands from people, and the consideration of justice, it is substantial issues for governments to promote the efficiency of administrative operation and the quality of administrative measures, and to raise the faith of obligors of tax-paying in tax administrations. “Where there is a right, there is a remedy”, it is the essential spirit in a legal state. Tax administrative remedy is the most important part in taxation because the achievements of administrative remedy greatly influence people’s fundamental rights and satisfaction with governments, although it is not the prime productive affair. The bureaus of National Tax Administration and former checking offices contact obligors of tax-paying frequently, so they are ultimate and the most effective ways to reinforce the efficiency of administrative operation and improve the service and checking quality. Therefore, the purpose of this essay is discussing the efficiency of deducing tax litigation in bureaus and offices of National Tax Administration of Central Taiwan Province. In addition, the methods in the essay are using “Data Envelopment Analysis” and “Malmquist productivity index” under the statistics of administrative remedy from 2005 to 2007 to evaluate the relative efficiency of every office. There is the conclusion of empirical research presented as follows. （1） In an aspect of technical efficiency, the office of the best average technical efficiency from 2005 to 2007 is Jhushan office, whose both pure technical efficiency and scale efficiency is 1. However, the office of the worst average technical efficiency is Beigang office. （2） In an aspect of the application of resource, the ratio of relative worse technical efficiency to the entire evaluated offices is certainly high. This represents that the relation between the investment and the production does not arrive at the optimal model. （3） In an aspect of returns to scale, tax administration cannot implement tax affairs under the most efficient model result from trimming organization and practicing the policy of facilitating people. The relative small scale cannot generate the highest beneficial results of applying resource. Keyword：Data Envelopment、Analysis、Performance of deducing tax litigation
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Chih-Yuang, Yu, and 游志煌. "Comparative Study on the Legal Scheme of Conducting Private Securities Litigation in Taiwan─Attorney-Driven v. NPO-Oriented." Thesis, 2004. http://ndltd.ncl.edu.tw/handle/02237861321709116160.
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碩士東吳大學
法律學系研究所
92
Compared to the old debate over private securities litigation as an enforcement mechanism, it’s becoming an emerging issue that which association alternative can better play the leading role of conducting securities litigations. The regulators in the United States and East Asia disagree about whether business association or nonprofit organization (NPO) can strengthen corporate governance, compensate investors’ loss and deter would-be wrongdoers through securities litigations. Milberg & Weiss, which is the largest plaintiff''s contingency fee-based law firm in America, has been responsible for more than $30 billion in aggregate recoveries. William Lerach, the securities-fraud kingpin and a partner with Milberg & Weiss, is held in high esteem and is regarded not only as a hero in the history of American corporate governance for championing shareholder lawsuits, but the top crime fighter in the post-Enron world. The motivation for Lerach’s chasing accounting shenanigans is not the abstract concept of investor protection but the deep pockets of corporations. Contingent fee combined with class action has triggered plaintiff''s attorneys, such as Lerach, to file a lot of securities litigations. We name this “attorney-driven model”. In Taiwan, the Securities and Future Investor Protection Law (SFIPL) was passed on July 17, 2002, which symbolizes a new era for investor protection. The SFIPL trusts an NPO known as protection institute with the heavy responsibility for reinstating public confidence in the capital market. Coincidentally, derivative suits in South Korea and Japan are also brought by NPOs on behalf of minority shareholders. We title this“NPO-oriented model”. The legal schemes of conducting securities litigations are bipolar in America and East Asia. The former emphasizes on profit incentives while the latter focuses on the nondistribution constraint. This study is trying to explore mainly the pros and cons of the two models and to find out a better litigation model compatible with the legal backdrop in Taiwan through the following chapters: Chapter Ⅰ illustrates the motives, methods, limitations, and realm of this paper. Chapter Ⅱ presents an overview of private securities litigation, including its definition, category, functions, side effects and models. Chapter Ⅲ looks profoundly into two crucial variables, i.e. contingent fee and class action, leading to attorney-driven model as well as the abuse and reform of securities litigation in America. Chapter Ⅳ depicts the rationale and background of NPO’s emergence to provide the public good in East Asia and then comes along with an introduction to the regulatory schemes of South Korea, Taiwan and China. Chapter Ⅴ reviews comprehensively the pros and cons of the two models set forth in Chapter Ⅲ and Chapter Ⅳ. We examine the primary defects of attorney-driven model, which are agency cost, overenforcement and negative images of lawyers. NPO-oriented Model, however, is not a perfect one either, which contains inherent flaws with respect to inefficiency, political intervention, governance problems and shortage of funds. Chapter Ⅵ proposes three possible approaches to improve the litigation model in Taiwan step by step. The current goal is to moderate NPO-oriented model. And then the next stage is to utilize the new group litigation mechanism provided in the Civil Procedure Law. The final target for litigation innovation is to introduce attorney-driven model under the premise that the effective control over agency cost is available. Chapter Ⅶ concludes that NPO-oriented model should be viewed as a supplement rather than a substitute, of attorney-oriented model and that to establish a market-oriented institution in our law enforcement system remains very significant in the post-SFIPL era.
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Cheng, Hui-chun, and 鄭慧君. "A Study on the Principle of Disadvantage Prohibition under Tax Litigation." Thesis, 2009. http://ndltd.ncl.edu.tw/handle/88161698415124223967.
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碩士東吳大學
法律學系
97
The Principle of Disadvantage Prohibition, applied to administrative remedy procedure, is derived from the Judicial Precedents and interpretations. Practically regarded as a legal principle of administration remedy, the Principle of Disadvantage Prohibition applies to every stage of reexamination, appeal, and administrative litigation. In order to remedy human rights thoroughly, the Legislative Yuan adopted the Principle of Disadvantage while the Administrative Litigation Act and the Administrative Appeal Act were amended in 1975 and 1998 respectively. This principle nowadays becomes an unchangeable rule in Justice. Consequences of applying this principle infringe not only the claim of Rule of Law and fairness, but also induce the abuse in of excessive litigation. It is therefore necessary to tell whether the Principle of Disadvantage Prohibition is a general principle of Administrative Law which could be applied universally, and whether the legitimacy of this principle is substantial as well. This study firstly uses remedy procedure for tax as a subject to explore the normality of Disadvantage Prohibition principle for administrative remedy system and to observe the application of the principle in practice. From the angle of the essence of tax cases, the author then examines the legitimacy of Disadvantage Prohibition principle based on the fundamental rules of tax law and on the target of litigation. The author lastly tries to illustrate how to make a judgment whether a change of disadvantage occurs under the current regulations, and addresses the issues of the application of this principle. In addition, she makes suggestions better protect both taxpayer's rights and public interests pursued by the tax system. The study concludes that the consideration of legislative policy gave the favor to the Principle of Disadvantage Prohibition in administrative remedy procedure. It is not proper that the judicial authority established this principle on legal precedents in reexamination stage. The author therefore urges that the judicial authority abolish improper precedents to restore the reexamining procedure under the supervision of Administrative Procedure Act and to carry out the Principle of Reliability Protection. Besides, to better protect both taxpayer's rights and public interests pursued by the tax system, the government should give the liberty to both appealing parties to add or alter the argument of their dispute, but not to confine the scope to the original reason of adjudication and the target of reexamining dispute.
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LEE, CHIA-KUAN, and 李佳冠. "ADMINISTRATIVE RULES IN TAX LITIGATION──THE IMPACTS ON BURDEN OF PROOF." Thesis, 2003. http://ndltd.ncl.edu.tw/handle/64683146000397827791.
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碩士國立臺北大學
法學系
91
The burden of proof always has influence on procedural rights of the parties and the rights brought by people in procedure. The decisions on burden of proof by justice court usually control the chances of people’s obtaining the real procedure. It seems that the administrative court could have difficulties to solve kinds of administrative cases, however, when examining the administrative court’s judgments. In order to give administrative court a sound theory on burden of proof, I try to introduce the national theories on burden of proof and discuss the opportunity of administrative court’s exercising the theories. Furthermore, administrative rules are usually used by administrative court in tax litigation now. But administrative rules are made by administrative authorities so that it leads that administrative authorities can control administrative court’s judgments and decide whether people’s rights could get remedy. In tax litigation, the professional knowledge of administrative court couldn’t compete with administrative authorities so that administrative court’s judgments are always influenced by administrative authorities’s administrative rules. Moreover, administrative authorities now are still making lots of administrative rules in informal rulemaking procedure. These behaviors avoiding the principle of rule of law will have great damage on people’s rights so that the principle of constitution will also be careless. In order to avoid this event occurring later, I try to arrange the administrative rules and discuss the effect of these administrative rules, so that maintain the principle of constitution and give a shelter of people’s rights. To sum up, administrative rules in tax litigation usually have great impacts on burden of proof now. Arranging these administrative rules becomes a great matter so that it gives people a safe and free-injury environment and changes the attitude of administrative authorities to make related rules in basis of the principle of constitution.
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CHEN, WEN-CHIN, and 陳文欽. "The Study of Goodwill Amortization on Business Mergers from Tax Litigation Cases." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/46927127329068562115.
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碩士國立高雄應用科技大學
會計系碩士在職專班
102
This study analyzes the tax litigation cases, issues about the goodwill amortization of a business combination. Business mergers and acquisitions have become the trends nowadays, whose types are diverse. Thus, by means of understanding different views of tax authorities and M & A companies we can find some approaches to strengthen relevant laws and offer objective suggestions, to reduce tax litigation cases, and to improve the mergers and acquisitions development of our country. By collecting, reading relevant literature to identify research topics and studying definition of mergers and acquisitions ,goodwill and intangible assets ,we can understand types and accounting mentioned above and then solve the problems of M & A . I adopted the approach of literature analysis and case study on this research. The discussion referring to the problem of mergers and acquisitions, M & A of goodwill amortization, related laws and regulations involved is numerous. This article only lists some important legal provisions and commands. Through an extensive collection of tax issues and litigation cases to analysis relative problems and understand the different opinions between both sides .The study is from litigation cases to understand the problem of M & A between tax authorities and enterprises, and provide suggestions and recommendations for academic research and practical solutions. This study proposes the following recommendations: First, Ministry of finance formulates an auditing policy on enterprise income tax of goodwill cases in the future. Second, with the implementation of International Financial Reporting Standards IFRS3, explaining the regulations. Third, the Ministry of Finance must control of goodwill cases. Fourth, set a reasonable period for the calculation of the purchase price for mergers & acquisitions cases.
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Sun, Ching-Fen, and 孫慶芬. "The Empirical Study on Tax Litigation - The Relationship between Judge and Decision." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/48100842817109572839.
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碩士國立臺北商業大學
會計財稅研究所
103
This thesis is an empirical study on the influences of administrative judges’ backgrounds on their decisions of tax cases, which collects the judgements from 2011 to 2013 via the judicial yuan of the republic of china law and regulations retrieving system and builds a database to run the probit regression. This thesis also includes interviews with judges to investigate the influences of their backgrounds on their decisions. From judge training to tax case trials, most judges lack professional knowledge on tax law. Taking the cases of different areas and colliagiate benches into consideration, this thesis puts forward two hypotheses according to different courts and senates. The first hypothesis is that, in the trial on matters of fact, the plaintiffs of tax litigation in the High Administrative Court have different probabilities of receiving a recovery of judgement due to different courts. The second one is that, in the preliminary proceedings of tax litigation cases, the plaintiffs’ probabilities to get a recovery of judgement would change according to different senates. The result indicates that the judges of Kaohsiung High Administrative Court tend to make decisions unfavorable to the plaintiffs. However, taking the difference of years into consideration, the judges of the sixth senate in Taipei High Administrative Court tend to make decisions in favor of the plaintiffs. In the process of building the database, the judges with serious attitudes toward their judgements are interviewed. They all agree that their backgrounds are helpful in dealing with their judgements whether they majored in public law or economics. They also point out that at present the judges lack professional trainings and need to replace their learning-by-doing pattern with a systematic way of learning and exams.
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Yen-JuCheng and 鄭燕茹. "The Burden of Proof in Tax Litigation under the Substantive Taxation Principle." Thesis, 2016. http://ndltd.ncl.edu.tw/handle/88946168199358784545.
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碩士國立成功大學
法律學系
104
Summary For most of our country’s tax litigation, the tax authorities adopt the substantive taxation principle as the basis. Because the connotation and application of the principles are not clearly stated in the provisions, and the practical judgment lacks an in-depth and detailed description of the allocation of the burden of proof and the court’s evaluation process, the obligor often suspects the authority of abuse of rights which results in a huge investment of judicial resources to solve such disputes. The victory or defeat in litigation depends on facts, and the recognition of facts is more difficult than the application of law. Therefore, the principle applicable to the recognition of facts in litigation is important. For tax litigation under the substantive taxation principle, this study uses the law of evidence to develop a set of clear and easy-to-follow allocation rules for the principle of investigation powers, the obligation of cooperation, the degree of proof, the allocation of burden of proof and their interaction, and proposes a recommendation for the future tax reform and the amendment to Article 12-1 of the Tax Collection Law in the hope of providing assistance in the practice of tax litigation. Keywords The burden of proof, the obligation of cooperation, push plan, the conversion of the burden of proof, the substantive taxation principle Brief introduction Most of the current tax disputes arise from the difficulty in fact recognition. After the update of the provisions of Article 12-1 of the Tax Collection Law, can the possible dispute on the recognition of substantial taxation be eliminated? How shall the burden of proof, the obligation of cooperation and the degree of proof be allocated? What is the scope and limitation of the substantive taxation principle? Where is the boundary with tax legalism? What is the logical order between the tax authority’s burden of proof and the taxpayer's obligation of cooperation? How should the law be amended in the future? All these issues are to be explored in this study. Method The literature analysis method is used to widely collect theme books, textbooks, journals and master and doctoral theses of domestic universities on the domestic Tax Law, Administrative Litigation Act and the burden of proof in tax litigation. Such literature are read and analyzed from the perspective of theories. Through the reference of relevant literature, the work starts from clarifying the basic theory of the burden of proof to construct the relevant principle of the law of evidence. Then the method of hermeneutics of law is used to explore the substantive taxation principle and burden of proof related concept and connotation, make a further analysis of and integration with the controversial tax litigation issues in practice, and summarize, analyze and clarify the practice and theories to put forward personal views, construct a complete and comprehensive method of practical solution from the perspective of the law of evidence of the tax law, and propose a recommendation for the future tax reform and the amendment to Article 12-1 of the Tax Collection Law in order to achieve the research purpose. Discussion At present most of the descriptions of the substantive taxation principle is abstract, but in actual tax litigation cases the two sides always have different views on the recognition of facts. This paper suggests that the application of the substantive taxation principle should not be without limitations, and only after the limitations are established should the tax collection authority apply the substantive taxation principle for tax adjustments. This study applies the law of evidence to analyze in the administrative relief process of tax litigation cases the relationship among ex officio doctrine, the obligation of cooperation, the degree of proof and the allocation of burden of proof, and learns that in the tax collection or tax relief process, the tax collection authority has the obligation to investigate the facts, and shall comply with the due process of law. Attention should be paid to evidences either favorable or unfavorable to the tax payer to protect people's rights and the legitimacy of taxation according to law. In the course of the investigation, in requesting the tax payer’s obligation of cooperation consideration should be given on distance of evidence and the “principle of proportionality”. In the tax litigation stage, the focus should be on the “normative theory” for the burden of proof, and adjustments should be made based on the case type. In addition, the “principle of investigation powers”, the “obligation of cooperation” and the “degree of proof” should be combined as the basis, with the reference that the degree of proof and the burden of proof should be the responsibility of the parties concerned, to serve as the rule of dealing with such cases. Conclusion This paper summarizes the elements of the principle of investigation powers, the obligation of cooperation, the degree of proof, the allocation of burden of proof and their interaction, and develops a set of clear and easy-to-follow allocation rules, as well as proposes a recommendation for the future tax reform and the amendment to the Tax Collection Law in the hope of striking a balance among tax legalism, tax fairness and protection of people's property rights, and providing assistance in tax litigation practice in order to reduce the source of tax disputes.
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Chiang, Yen-Tso, and 江彥佐. "The Study of the Burden of Proof in Tax Litigation and Its Application for the Estate Tax Liabilities." Thesis, 2006. http://ndltd.ncl.edu.tw/handle/77058315016544001744.
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碩士東吳大學
法律學系
94
During the lawsuit process, the judges have to verify the truth and then know which article to apply for the case. The truth can only be proved by evidences. However, oftentimes, if the evidences can not prove the existence of the truth and the judges can’t not refuse to judge the case, and then it will be regarding the burden of proof. Besides, how many evidences have to be provided by the litigant to prove the existence of the truth is also about the burden of truth. Therefore, the concept of the burden of proof is the focus of this thesis. Many theories of burden of truth are from civil action, and civil action is very different from administration litigation in trial, and tax litigation is a form of administration litigation, therefore the burden of proof of tax litigation can be studied in the following aspects: the different characteristics of different litigations and the uniqueness of each tax case. In order to testify the theories of the burden of proof of tax litigation and to make this study more practical, estate tax is used as the main focus of the thesis. Besides, the problem of burden of proof in the elements of tax regulations of estate tax in Estate and Gift Tax has also been discussed, and the problems are: who takes the burden of proof, what kind of evidence should be provided, and so on. Furthermore, some of the important problems in estate cases in practice are also discussed. In the end of this study, suggestions are made for the burden of proof of tax litigation.
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Lin, Chih-Jung, and 林至容. "The study on the effects of judges\' social background on tax litigation outcome." Thesis, 2019. http://ndltd.ncl.edu.tw/handle/k2z2h5.
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碩士國立政治大學
會計學系
107
This paper examines how judges’ social background influence the tax litigation outcome. By collecting verdicts of corporate income tax in supreme administrative court from 2016 to 2018, the empirical result illustrates that judges’ social background are significantly related to the corporate income tax litigation. In addition, the enforcement of the Taxpayer Right Protection Act substantially enhances the probability of winning rate, which achieve the initial purpose of the law. Finally, we find that the specialized tax courts have differences between themselves, causing the appellants undertaking unstable risk of the litigation outcome inevitably.
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Lin, Chin-Wei, and 林敬偉. "The Impact of Agent’Professional Background on TheOutcome of an Income-tax Administrative Litigation." Thesis, 2008. http://ndltd.ncl.edu.tw/handle/07734376545614844512.
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碩士國立臺灣大學
會計學研究所
96
The ideal litigation representative system ought to be able to safeguard litigant''s litigation rights and interests, and makes the litigation process effectively. The previous literatures regarding legal representative''s function concentrate on attorneys, but few studies examine the influences of non-attorneys represent litigant to process litigation. This study adopts empirical legal research to examine the impacts of the agent’s professional background on the efficiency and outcome of an Income-tax administrative litigation. This study finds professional litigation representatives significantly extends the litigation days, and significantly promotes the probability to win the litigation. Thus, professional litigation representatives can safeguard litigant''s litigation rights and interests, but can’t make the litigation process effectively. This study also examines the difference between CPAs and lawyers, and finds (1) CPAs have higher litigation efficiency; (2) CPAs and lawyers have no significant difference on assisting litigants getting higher probability to win the litigation. Therefore, this study suggests CPAs works as the Income-tax administrative litigation representative more suitably.
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Wei, Su-Hsing, and 魏素幸. "A Study on Tax Preference Treatment in Taiwan - Cases of tax credit for R&D Expenditure in Administrative Litigation." Thesis, 2011. http://ndltd.ncl.edu.tw/handle/76867564701854563226.
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碩士中原大學
財經法律研究所
99
The purpose of this study was to analyze court decisions on the applicability of the investment tax credits to research and development expenditures related to the implementation of Statue for Upgrading Industries over recent 10 years. It was found that there existed doubts among both tax-payers and tax-collectors over the violation of the principle of statutory tax-paying and the principle of proportionality as well as the procedural issues of the competent authorities. Hence, discussion and analysis were conducted on the relevant legal disputes based on tax incentives-related principles of statutory tax-paying, specific authorization and proportionality. Observation found that tax incentives measures were commonly adopted by the competing countries such as Japan, Singapore, South Korea and China to encourage businesses’ research and development activities. Studies conducted by many economists also suggested incentives of this like have produced significant results and should be continued to help enhance industries’ competitiveness. Consequently, the results of this study conclude that Statue for Industrial Innovation should continue to provide tax incentives to promote industry’s research and development.
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Huang, Wen-Chi, and 黃文琪. "A Study on the Issues of Business Income Tax Related to the Tax Litigation of the Taipei High Administrative Court." Thesis, 2004. http://ndltd.ncl.edu.tw/handle/24464968044003205858.
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碩士淡江大學
會計學系
92
Any levy of tax has to be implemented on basis of legal practices of administration by tax collection offices of government. But if anyone who concludes that an administrative action against him by tax collection office is illegal or unjust and has incurred damage or loss on his rights or interests, he should have right to claim administrative remedy. Although the new tax administrative remedy system in our country has been implemented since 1990, there is very high ratio of tax cases and has increased quickly year by year among cases considered in High Administrative Court. The situation highlights the fact that many people may have doubts about administrative action by tax administrative offices. Hence as lawsuits for administrative remedy are mounting, the problems behind situation and difficulties the related authorities and taxpayers face are worth of further explorations. Based on above-mentioned considerations and in light of fact that there are few explorations through aspect of administrative remedy on impacts of tax administrative actions in our country on tax administrative offices and taxpayers and little information on them are available, the author of the thesis pioneered to conduct research by selecting cases of tax administrative litigation recorded from verdicts inquiry of law materials sorting system offered by Taipei High Administrative Court, which has most of cases among high administrative courts in Taiwan, on website of Judicial Yuan, with the case of “business income tax”, which is important category of tax for the central government, as primary target of research. The research adopted “content analysis” as the method of research and conducted exploration on sizes of companies, procurators, areas of jurisdiction of National Tax Administration and results of considerations, distribution of subject matters of actions. The results of research found that National Tax Administration has gained advantage over its opponents in most of administration litigation cases. For winning lawsuits, it will be better for companies to employ a procurator through joint procuration. Public companies have filed fewer lawsuits of administrative litigation than non-public companies. Most of reasons for filing lawsuits were involving lawful contentions. The research offers its recommendations after summarizing above the results of research: 1) The tax authority should pay more attention to impacts brought by new system of administrative litigation in the early stage. The Ministry of Finance and the National Tax Administration should establish a mechanism that both parties have to regularly review various cases that are rescinded in addition to circulate rescinded cases in administrative litigation; 2) Considering tax administrative cost and maintaining the fair tax system, the tax authority should forge ahead toward short term goal – reduce tax lawsuits, and long term goal – speed up reform of related tax systems; 3) Procurators should enrich their professional knowledge of taxation and laws that may serve as best protection for the accusers and the defendants; 4) There are many cases of administrative litigation that had verdicts of “adjudication of rejection”. Therefore, in order to protect interests of taxpayers, related authorities should give more publicly on procedures and forms of administrative remedy.
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HUNG, CHIA-PANG, and 洪嘉邦. "A Study of The Right to Be Heard in The Procedure of Tax Litigation." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/4emz6w.
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Ke, Chi-Wen, and 柯期文. "The Impact of Agents’ Professional Background on Income-tax Administrative Litigation in selection model." Thesis, 2010. http://ndltd.ncl.edu.tw/handle/63405137932885466041.
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碩士國立臺灣大學
會計學研究所
98
In the past, some essays analyzed the impact of agents’ professional background in income-tax administrative litigation, but most of them did not concern about that self-selection bias and sample selection bias may influence the outcomes in this issue. This article uses Heckman two-stage model to identify and correct those biases. The empirical evidence shows that accountant-agents could significantly give their clients higher winning rates, but there is no evidence to support that lawyer-agents could do so. Furthermore, the litigation with lawyer-agents takes more time than one without lawyer-agents. On the contrary, it is not significant that accountant-agents would increase litigation time period. The results could be references for the future amendment of the Administrative Litigation Act.
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SU, YING-SHUANG, and 蘇櫻霜. "The Impact of Agent＇Professional Background on the Outcome of a Gift-tax Administrative Litigation." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/33852735196919352172.
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碩士國立臺北大學
會計學系
103
The purpose of litigation representative system is to provide protection for the litigants, to facilitate the litigation process, and to make the litigation resources more economical. By analyzing gift-tax administrative cases, this study explores the impacts of different professional backgrounds, the number of people, and the seniority of the litigation agents on the outcome of a gift-tax administrative litigation. In descriptive statistical analysis, there is a better chance for a case to undergo a substantive examination with the help of litigation agents, in which lawyers help the most. As for the cases which gain access to substantive examinations, about 82% of the taxpayers lose suits. Cases with the aid of litigation agents, mainly lawyers, also take up to 82% of the ones undergo substantive examinations. Through regression analysis, professional litigation agents do not significantly influence the number of days and the result of a litigation. The study also examines the difference between accountants and lawyers. While accountants have better litigation efficiency, there is no significant difference between litigation results assisted by a lawyer and an accountant. This indicates that accountants are more suitable agents for the gift-tax administrative litigation than lawyers. In comparison of accountants, lawyers and joint proxies, they make no difference to the number of litigation days and the litigation results. However, the cost of joint agents may be another important consideration when selecting agents ad litem. In addition, a bigger number of administrative litigation agents has little influence on the length of time and results of a litigation. And with lawyers having more experience in practicing law, the litigation efficiency is not significantly promoted, but the results of gift-tax administrative litigations are worse. Also, as the amount of money of a litigation increases, the litigation efficiency lowers but the results are significantly better.
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I, Chung-Yun, and 易昌運. "A Study of the Burden of Proof in Administrative Litigation under Tax Law: Exemplified by Proceedings under Income Tax Law and Estate and Gift Tax Law." Thesis, 2005. http://ndltd.ncl.edu.tw/handle/13816360097782315049.
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Chang, Che-Yu, and 張哲瑜. "The Impact of The Taxpayer’s Rights Protection Act on The Outcome of an Income-tax Administrative Litigation." Thesis, 2019. http://ndltd.ncl.edu.tw/handle/29ybru.
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碩士國立臺灣大學
會計學研究所
107
The Taxpayer’s Rights Protection Act came into force on Dec. 28, 2017, which brought substantial reforms to tax collection and remedial procedure, giving taxpayers more sufficient protection. This study uses empirical research, calling on the verdicts of the High Administrative Court from 2013 to Apr. 2019, to examine the impact of The Taxpayer’s Rights Protection Act on the outcome of an income-tax administrative litigation, and the impact of agents’ professional background on the outcome of litigation. According to empirical results, no sufficient evidence shows that the outcome of litigation is more advantageous to taxpayers after the enforcement of The Taxpayer’s Rights Protection Act; weak evidence shows that the outcome of litigation is more advantageous to taxpayers if the verdict adopts clauses of The Taxpayer’s Rights Protection Act. The study also finds that the use of accountants or lawyers alone as agents has no significant impact on the outcome of litigation; however, the use of both accountants and lawyers does increase the chance of getting favorable litigation outcome.
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Kuo, Shun-Cheng, and 郭順成. "Litigation on Economic Principles in the Application of Administrative Proceedings - Income Tax Administrative Court Judgment in Case." Thesis, 2013. http://ndltd.ncl.edu.tw/handle/73213384887387067550.
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碩士輔仁大學
會計學系碩士班
101
As the contemporary state must rely on people's " Geld " benefit, therefore, "The Financial State" is based on money as a core element of national synonyms. People’s fiscal burden according to public law, taxation, has become the main financial tool generally. Because the tax affairs of a technical nature and professionalism, especially huge amounts of taxes interpret the command and administrative rules, the general population is difficult to completely familiar. Ordinary people may hardly familiar, so that go against the law due to incorrect understanding of the law often occurs, or they may be often subject to punishment because they and tax authorities have different opinions on the tax laws. Moreover, the existing tax administrative relief system adopts a recheck approach, which does not agree with tax notices must first apply for the program. However, because the "recheck" lack of external experts and scholars to participate in the audit and decisions, so that taxpayers may not trust the neutrality of recheck decision and timeliness of relief generally, and then filed an “administrative appeal”, an “administrative litigation”. Under the national overall considerations of resources allocation, judicial budget cannot unfettered increases, so how to use the litigation economic principles under this limited judicial resources to develop the maximum effectiveness of judicial resources is an urgent issue for judiciary and the parties. However, the related studies in this field of research are really scarce in Taiwan. The purpose of this study is to collect, compile and analyze income tax ruling of the administrative court, as well as to make recommendations to serve as the executive, legislative, judicial and taxpayer references, hoping to save labor, time and costs of the parties, as well as promoting the judiciary most effective use of resources.
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Fu, Shin Yi, and 傅馨儀. "The difference between the cognition of formality and substance in the tax litigation—Comparison among judges, lawyers& CPAs." Thesis, 2008. http://ndltd.ncl.edu.tw/handle/27897374884151542276.
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碩士國立政治大學
會計研究所
96
Tax litigation is in the administrative court in Taiwan, and occupies the administrative court approximately about 40%. If we can achieve effect of the tax affairs lawsuit economy, it is quite important to the administrative court or the legal representative (including lawyer and certified public accountant). We wants to achieve the lawsuit economy, and achieves the goal of the Public accounting firms for the litigant case, must let judges clear legal representative statements’ key point of the tax cases, those need lawsuit skill. This essay aim to those important topic to design questionnaire, By judges、attorney at law and accountant fill in the questionnaire, seeks between legal representative (attorney at law and accountant) and judge the communication platform. The thesis select several important topics, discuss composition in view of the case content, as well as the court investigates the key direction and how to using the logical elaboration way to describe dispute issues. In order to help judge and legal representative carries on the tax litigation cases. Finally this paper puts forward the reform proposal of tax administrative lawsuit legal system, such as: establishment Tax administrative lawsuit counseling branch, specialist training curriculum of Tax and accounting, the suggestion establishment specialized lawsuit court, the expert participates in the trial……etc.
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Lin, Yu-Wun, and 林昱妏. "A Study on the Indicators Construction of Judicial Confidence—Cases Analysis of Tax Litigation for Taichung High Administrative Court." Thesis, 2018. http://ndltd.ncl.edu.tw/handle/nsfg6f.
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碩士國立中興大學
國家政策與公共事務研究所
106
As all citizens eagerly wish to strengthen the nation’s judicial confidence, this study aims to tackle this complex issue by looking at the tax litigation for Taichung High Administrative Court and will use two theories in social capital - social confidence and corporal confidence - as the indicative basis to construct judicial confidence. The Delphi method is employed in collecting testimonies from litigation experts, which are analyzed by means of two-dimensional array, to accomplish three main goals: to understand the structural attributes, contents, and indicators for judicial confidence; to obtain objective and feasible indicators for judicial confidence through gathering and analyzing expert testimonies; and to propose concrete proposals to strengthen the nation’s judicial confidence. The study is founded on six aspects: consistency, fairness, honesty, efficiency, aptitude, amicability benevolence. These are then subdivided into 24 indicators. The findings can be categorized in three main areas. First, the indicative structure founded in this study is comprehensive in scope, resulting in differences between expectation and reality concerning the actual implementation of the proposals to strengthen judicial confidence and the degree to which the proposals are practiced. The differences also include conflicts among expert testimonies, rendering a consensus highly unlikely. Second, experts all agree to the indicators brought up in this study, consenting on the equal importance across the complicated indicators. This poses great significance for the eclectic and meticulous nature of all the indicators for judicial confidence. Third, according to the two-dimensional array analysis, three indicators whose significance has been highlighted but whose implementation is found to be unsatisfactory are: the court should treat similar incidents with equal measures; the judges should be trustworthy; and the judges should possess accurate judgement. The study thereby proposes these three points at the top priority for further improvement. This study proposes three further research directions: first, for different judicial litigation cases, the structural aspects and indicators for judicial confidence should be differentiated; second, future researches should augment the research goals and sample size; third, the scope for future research targets can be more expansive and diverse to include, for instance, personnel across national organizations in accounting and taxation. Should the analyses include larger numbers of national tax litigations, the amount and accuracy of information gathered will be greatly enhanced, rendering even more exact indicators for judicial confidence.
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Tsao, Chiou-Yen, and 曹秋燕. "The Research on Litigation of Profit-Seeking Enterprise Income Tax-From the Prospect of the Judgements of the Taipei High Administrative Court." Thesis, 2004. http://ndltd.ncl.edu.tw/handle/9w4edg.
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碩士中原大學
會計研究所
92
Abstract Through the collection of the judgements of the Taipei High Administrative Court , this research analyzes administrative litigation by private enterprise and refines it down to the most frequently occurring issues. These issues are mainly in the areas of disputes based in tax law; investigation and examination; or tax reporting. Furthermore, this research also gathers the practical suggestions and the reasons of final sentencing from the court and concludes advice to improve the current tax system legislation and its execution. Hopefully this will offer some references for tax officers to employ in their proceedings with tax disputes. This research is in accordance with the variables of collection, and essential statistics have been computed. We can separate these into three parts to analyze; the fundamentals of disputed cases; the judgment of disputed cases; and the origin of disputed cases. Among these three parts, we took the result of the disputed case, concentrating especially on the origin, and identified the sentences with connections to tax law and concluded practical advice and the reasons for final pronouncements of the court. These suggestions are : 1. To lessen unnecessary disputes, when the Taxation Office cites the relative laws to check and ratify, we have to give the taxpayers more opportunity to explain and to consider the layers of evidence substitution not only to stand on points of the words and sentence of laws. According to enterprise, the safest way is to build up a set of integrated and well organized accounting systems in order to provide accounts which contain the evidence. 2. To establish the Land Tax and Other Levies Enterprise Court, it is better that the judiciary possess the background of accounting and Land Tax and Other Levies Enterprise to judge the administration of Land Tax and Other Levies Enterprise. So not only we can alleviate the pressure of affair from general judiciary of the court, but also can raise the quality and effectiveness of legal cases when we judge even more closely than before. 3. The case of bond or debenture should regress the tax system from the earnings of the individual and finance field that they evade. We have to check those who evade declaration of their income then make up the taxes in conformity with a law. Of course, we need to amend the deficit of the relative laws. 4.To verify the case of R&D expenditure, we can have the aid of specialists, who understand well different fields. Also we can resolve that if the enterprise is engaged in the R&D project that it has to inform to the Taxation Office in advance, and during the proceeding of R&D project the Taxation Office must to get to know the real situation. 5. The fifty-eight statute of Examination Rules of the Income Tax Act needs to be revised in an appropriate way. To loosen or relax restrictions the condition of the well-organized accounting system to avoid the taxation personnel just examine by form. According to the manufactures to address the problem that concerns the using of raw, we suggest that the report from the chartered accountant can be the essential information.
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Pereira, João José Estima. "O regime simplificado de tributação em sede de IRS." Master's thesis, 2020. http://hdl.handle.net/10316/94393.
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Dissertação de Mestrado em Contabilidade e Finanças apresentada à Faculdade de EconomiaThis dissertation aims to analyze the tax litigation related to the simplified regime, in the personal income tax. During this work we will identify the main reasons that generate litigation between the parties, the arguments that are used by the parties and, to understand the predominant meaning of the decisions of the Arbitration Court. During the investigation, we will critically analyze the decisions made by the AC, operating in the Administrative Arbitration Center, in order to understand the type of operations that are the basis of the conflict between the Liability Subject and the Tax and Customs Authority. This analysis will culminate in the definition of a predominant trend in Arbitration Court's decisions. The analysis of the arbitration jurisprudence shows that there is, in general, a greater tendency for Arbitration Court to declare the illegality of the additional tax assessment carried out by Tax Authority in the simplified personal income tax regime. Thus, the predominant meaning of Arbitration Court’s decisions, in general, operating within the Administrative Arbitration Center, is favourable to the taxpayer. Despite this, some decisions favourable to Tax Authority still exist. In this sense, the trend found respects several gaps in Tax Authority's performance in the simplified regime. In the course of its audits, the most problematic issues concern compliance with the criteria required by the simplified regime and the correct application of the calculation coefficients of taxable income.
A presente dissertação tem como objetivo a análise da litigância fiscal relativa ao regime simplificado, em sede IRS. Durante este trabalho iremos identificar as principais razões que geram litigância entre as partes, os argumentos que são utilizados pelas partes e, ainda, perceber o sentido predominante das decisões do Tribunal Arbitral. Durante a investigação, iremos analisar criticamente as decisões proferidas pelo Tribunal Arbitral, a funcionar no Centro de Arbitragem Administrativa (CAAD), com o intuito de entender o tipo de operações que estão na base do conflito entre o Sujeito Passivo e a Autoridade Tributária e Aduaneira. Esta análise culminará com a definição de uma tendência predominante das decisões do Tribunal Arbitral. Conclui-se da análise da jurisprudência arbitral que existe, de um modo geral, uma maior tendência para a declaração de ilegalidade da liquidação adicional de imposto realizadas pela Autoridade Tributária, em matéria de regime simplificado, em sede de IRS. Desta forma, o sentido predominante das decisões do Tribunal Arbitral, a funcionar no CAAD, são favoráveis ao sujeito passivo. Neste sentido, a tendência encontrada respeita a diversas lacunas encontradas na atuação da Autoridade Tributária em matéria de regime simplificado. No decorrer das suas auditorias, os temas mais problemáticos respeitam ao cumprimento dos critérios exigidos pelo regime simplificado, em sede de IRS, e à correta aplicação dos coeficientes de apuramento do rendimento tributável.
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Chung, Su-Ching, and 鍾素菁. "A Research on Litigation of Value-added and Non-value-added Business Tax Act ：Using the Judgments of the Taipei High Administrative Court as Examples." Thesis, 2009. http://ndltd.ncl.edu.tw/handle/43429852007750372347.
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碩士中原大學
會計研究所
97
Through the collection of the judgments of the Taipei High Administrative Court, this research analyzes administrative litigation by Value-added and Non-value-added business tax case study. Based on data collected, and essential statistics have been computed. We can separate these into three parts to analyze; the fundamentals of disputed cases; the judgment of disputed cases; and the origin of disputed cases. Sort out a common pattern of tax evasion. Practice on finishing the final summary of the views and the Taipei High Administrative Court verdict, on the grounds of the current tax-related amendments to the tax laws and enforcement can be an effective measure of the improvement proposals. As for the business entity do not know the relevant provisions of inadvertent or a result of tax evasion, organize business cases were easy to make mistakes and norms. Conclusion in accordance with narrating and adding up this research resulting divide side into the judgment of disputed cases and the origin of disputed cases aspect; project prove result of adding up in accordance with results of judgments, judgment period, lawsuit agent, procedures for administrative remedies, issues, target of administrative litigation, cause of administrative litigation separately, etc; to penetrate the analysis of cases separately, depend on judgment result divide side into the overrule the plaintiff’s judgment of telling, cancel and punish the judgment originally, cancel the judgment partly and overrule the judgment partly aspect; prove at present how about is sparse to reduce administrative litigation source to reach improvement of the rent taxes and is declared and led, tax administration decree, burden of proof, the education of tax staff is trained. This research suggest making the pay taxes obligator right protect standard, revise the case violating the regulations of tax administration Reference Table for Fines and Multiples of Punishment, revise and mention the administrative remedy favorable regulation to the fine currently, change tradition rent the tax declares the way of leading, and enhance tax staff’s foundation and specialty to train.
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Correia, Sandrina Filipa Almeida. "O REGIME DOS PREÇOS DE TRANSFERÊNCIA E A LITIGÂNCIA FISCAL Uma análise à luz de decisões do Centro de Arbitragem Administrativa." Master's thesis, 2018. http://hdl.handle.net/10316/84664.
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Dissertação de Mestrado em Contabilidade e Finanças apresentada à Faculdade de EconomiaA aplicação das regras fiscais dos preços de transferência às operações entre partes relacionadas não é uma tarefa simples, pelo que, em inúmeras situações, os contribuintes e as autoridades fiscais estão em desacordo quanto à sua adequada aplicação. Como resultado, esta é uma das matérias tributárias com um elevado potencial de litigância. A presente dissertação tem como objetivo analisar a questão da litigância fiscal no contexto da aplicação do regime fiscal dos preços de transferência. Em concreto, pretende-se identificar as principais razões para tal situação, que razões estão mais frequentemente na base desses litígios e qual o sentido predominante das decisões arbitrais nos litígios dirimidos sobre preços de transferência. Para o efeito, metodologicamente, proceder-se-á a uma análise crítica de decisões proferidas pelos tribunais arbitrais a funcionar no Centro de Arbitragem Administrativa (CAAD). Conclui-se da análise da jurisprudência arbitral que as operações financeiras, as operações de compra e venda de mercadorias ou produtos, as operações de compra e venda de ações, as operações relacionadas com ativos intangíveis e as operações que envolvem a prestação de serviços intragrupo são aquelas que mais frequentemente são objeto dos litígios entre a AT e os contribuintes. O sentido predominante das decisões do CAAD no que respeita aos litígios sobre PT é favorável aos contribuintes. Esta tendência é consequência de diversas lacunas identificadas na atuação da AT no decorrer das suas auditorias, designadamente ao nível da análise de comparabilidade, da metodologia na determinação dos preços de transferência utilizada, na verificação dos pressupostos legais exigidos para que seja aplicado este regime e nos requisitos de fundamentação legalmente exigidos.
The application of transfer pricing tax rules to related parties transactions is not a simple issue and, in many cases, taxpayers and tax authorities strongly disagree regarding the proper application of the law. As a result, this is one of the tax matters with a high potential for litigation. The present research analyses the question of tax litigation in the context of the application of the transfer pricing tax regime, in Portugal. Specifically, it is intended to identify the main reasons for such a situation, what reasons are most frequently the basis of transfer pricinng disputes and what is the predominant outcome of the CAAD's tax rulings. Methodologically, for this purpose, a critical analysis of the tax rulings made by the Administrative Arbitration Center (CAAD) will be carried out. We can conclude from the analysis of the case-law that financial transactions, purchases and sale of products, share purchases, intangible assets transactions and involving intra-group services are most frequently the subject of tax disputes. The predominant meaning of CAAD's tax rulings is favorable to taxpayers. This trend is a consequence of several shortcomings identified in the performance of the AT in the course of their audits, namely, at the level of the comparability analysis, methodology in determining transfer prices used and verification of the legal assumptions and legal requirements required to apply the transfer pricing tax rules.
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Santos, Gonçalo Carvalho. "O regime fiscal das Perdas por Imparidade em Ativos Correntes - Uma análise de jurisprudência sobre inventários e créditos a receber." Master's thesis, 2020. http://hdl.handle.net/10316/94414.
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Dissertação de Mestrado em Contabilidade e Finanças apresentada à Faculdade de EconomiaA presente dissertação versa sobre o regime fiscal aplicável às perdas por imparidade em ativos correntes, procurando analisar o normativo contabilístico que disciplina o seu reconhecimento, mensuração e desreconhecimento, como também os critérios que levam à sua consequente aceitação fiscal.Sendo um tema que enferma de subjetividade de cálculo, a aplicação das regras fiscais não se apresenta como uma tarefa simples, pelo que, em diversas ocasiões, gera conflitos entre os contribuintes e as autoridades fiscais. Nesse sentido, tem-se apresentado como uma das matérias tributárias com um elevado potencial de litigância.Debruçando-nos, fundamentalmente, em imparidades de inventários e créditos a receber, o objetivo da presente dissertação é analisar a jurisprudência que advém da dificuldade de aplicação das regras fiscais neste regime. Desse modo, pretendemos identificar os fatores geradores de litígio e qual o sentido maioritário das decisões dos tribunais.Para o efeito, metodologicamente, a investigação centrar-se-á numa análise crítica de decisões proferidas pelos tribunais estaduais fiscais portugueses de nível superior (STA, TCAN e TCAS) e ainda dos tribunais arbitrais que funcionam no CAAD.Conclui-se da análise dos casos jurisprudenciais que as perdas por imparidade em créditos de cobrança duvidosa são a operação que com mais frequência está na base dos litígios entre o contribuinte e a administração fiscal. A aplicação do princípio da especialização dos exercícios apresenta-se como a problemática que está maioritariamente subjacente a estes conflitos. O sentido predominante das decisões dos tribunais, no que respeita aos litígios definidos na amostra, é favorável à AT. Esta tendência é consequência da dificuldade dos contribuintes em cumprir as regras fiscais das imparidades, com especial relevo para o artigo 18.º do Código do IRC.
The following Master's thesis deals with the tax regime applicable to impairment losses on current assets, seeking to analyse the accounting rules that regulate their recognition, measurement and derecognition, as well as the criteria that lead to their consequent tax treatment.As an issue that suffers from subjectivity of calculation, the application of tax rules is not a simple task, and therefore, on several occasions, generates conflicts between taxpayers and the tax authorities. In this sense, it has presented itself as one of the tax matters with a high potential for litigation.Dealing fundamentally with impairments of inventories and accounts receivables, the objective of this dissertation is to analyse the jurisprudence that arises from the difficulty of applying the tax rules in this regime. In this way, we intend to identify the factors that generate litigation and what is the court's majority decisions. To this end, methodologically, the research will focus on a critical analysis of decisions rendered by the Portuguese tax courts (STA, CAAD, TCAN and TCAS).The analysis of jurisprudential cases shows that impairment losses in doubtful debts are the operations that most often result in litigation between the taxpayer and the tax authorities. The application of the accrual principle is the problem that most frequently underlies these disputes. The predominant Court decisions, as regards the disputes defined in the sample, are in favour of the tax authorities. This tendency is a consequence of the taxpayers' difficulty in complying with the tax rules of impairments, with special emphasis on Article 18 of the CIT Code.