最後，本研究以我國現行稅捐稽徵法逃漏稅捐罪規定與修正草案內容及美國稅捐刑罰關於逃漏稅捐及故意不申報相關規定，併同比較及分析構成要件，提出將不作為犯納入法律之相關修正建議。 Tax crimes have been punished for many years, but the judiciary has generally taken the view that the conviction of tax crimes requires affirmative acts and omission is not punishable. However, it is doubtful that this view realizes equity and justice. The draft amendment of Article 41 of the Tax Collection Act publicized in the notice and comment procedure in 2019 took omission into consideration. As a result, this issue is worth further discussion.
This study focuses on the offenses of tax evasion as provided in Article 41 of the Tax Collection Act. Firstly, this study introduces the topic with two judgments of Taiwan Supreme Court to demonstrate the judiciary’s view that the conviction of tax crimes requires affirmative acts. This study criticizes as mistaken the view that tax crimes cannot be committed through omission.
Secondly, this study introduces the types of criminal omission, and analyzes the opinions of judicial practice and academic works concerning the question whether tax crimes may be committed through omission or not. Then, this study concludes that committing tax crimes through omission belongs to the category of derivative omission offences. According to this conclusion, this study analyzes the requisite elements of derivative omission offences.
Lastly, this study compares the offenses of tax evasion under the Tax Collection Act in Taiwan, and the offenses of tax evasion and the offenses of willful failure to file return in the United States of America. In the conclusion, this study proposes legislative amendments as to the punishment of omission offence under the Tax Collection Act.