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(釋字第 698 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.698 
Date 2012/3/23
Issue 1. Is it unconstitutional that the Commodity Tax Act provides that a color television set shall be subject to commodity tax?
2. Is it unconstitutional that Ministry of Finance Ordinance provides that if a display and a tuner are not removed together from the manufacturer’s premises at the same time, the items shall not be deemed a taxable “color television set” and therefore are not subject to commodity tax?
Holding The provision of Subparagraph 2, Paragraph 1, Article 11 of the Commodity Tax Act that “Taxable items and tax rates for electric appliances are as follows:.…. 2. Color television sets: taxed on an ad valorem basis at 13%.” is not in contravention of the principle of equality under Article 7 of the Constitution.

Ministry of Finance Ordinance Tai-Tsai-Suei No.09604501870 (June 14, 2007) is not in contravention of the principle of taxation by law and the principle of equality by providing that: “(1) a color television set as set forth in Subparagraph 2, Paragraph 1, Article 11 of the Commodity Tax Act is required to be equipped with two key component parts at the same time, namely, a color display and a TV tuner; ( 2) if a manufactured or imported color display is not equipped with a TV tuner and its product name, operation manual as well as packing do not identify it as a TV, and if its removal from the manufacturer’s premises (or if its importation) is not combined with a machine that possesses a TV tuner function, it shall not be deemed a taxable “color television set” because it cannot receive TV/video signals and broadcast TV programs, and therefore is not subject to commodity tax upon removal from the manufacturer’s premises or upon importation; (3) if a manufactured or imported TV tuner alone or a machine equipped with a TV tuner function, and its main body is not equipped with a TV display, and if its removal from the manufacturer’s premises (or if its importation) is not combined with a TV display at the same time, it shall not be subject to commodity tax upon removal from the manufacturer’s premises or upon importation.”
Reasoning Taking Supreme Administrative Court order T.T. 4224 (Supreme Administrative Court, 2008) (the “order in dispute”) as a final and conclusive judgment, Petitioner requested an interpretation on the constitutionality of the Court’s application of Subparagraph 2, Paragraph 1, Article 11 of the Commodity Tax Act, Ministry of Finance Ordinance Tai-Tsai-Suei No.09604501870 (June 14, 2007) ( the “ordinance in dispute”) and Article 32 of the Commodity Tax Act which was amended and promulgated on May 7, 1997 and became effective on January 1, 2002, to the order in dispute. Examination of the order in dispute shows that Petitioner failed to concretely specify the reasons why Taipei High Administrative Court decision No. 96-Su-Tzu-517 failed to apply the law, applied it improperly, or violated it, and so ruled that the appeal should not be deemed lawful, and on procedural grounds overruled the appeal. Consequently, this Yuan opined that Taipei High Administrative Court decision No. 96-Su-Tzu-517 should be the final and conclusive judgment, based on which this petition at issue has been filed. Although the Court did not formally cite the ordinance in dispute when rendering its final judgment, the rationale and wording employed in the two administrative orders, i.e., Ministry of Finance Directive Tai-Tsai-Suei No.57275 (August 7, 1984) and Ministry of Finance Ordinance Tai-Tsai-Suei No.0920455616 (November 18, 2003) (collectively, the “two administrative orders”) as the basis for its reasoning, are identical with the contents of the ordinance in dispute (the ordinance in dispute was promulgated at the same time when the two administrative orders were abolished). Therefore, the ordinance in dispute should, thus, be deemed to have been applied, in substance, by the final and conclusive judgment (See J.Y. Interpretations Nos. 399, 582, 622 and 675).

Subparagraph 2, Paragraph 1, Article 11 of the Commodity Tax Act provides that: “Taxable items and tax rates for electric appliances are as follows: .… 2. Color television sets: taxed on an ad valorem basis at 13%.” (the “rule in dispute”) and the legislative choice to impose commodity tax on color television sets but not on other electric appliances equipped with color-video-capture function is based on national tax, industrial policy, and energy-saving considerations and does not exceed the scope of legislative discretion. Therefore, it is neither abusive nor contrary to the principle of equality under the Constitution (See J.Y. Interpretation No. 697).

To assist its subordinate agencies to unify recognition of the definition of color TV sets as defined by the rule in dispute, Ministry of Finance issued the ordinance in dispute to clarify that: “(1) a color television set stipulated in Subparagraph 2, Paragraph 1, Article 11 of the Commodity Tax Act is required to be equipped with two key component parts at the same time, namely, a color display and a TV tuner; ( 2) if a manufactured or imported color display is not equipped with a TV tuner and its product name, operation manual as well as packing do not identify it as a TV, and if its removal from the manufacturer’s premises (or if its importation) is not combined with a machine that possesses a TV tuner function, it shall not be deemed a taxable “color television set” because it cannot receive TV/video signals and broadcast TV programs, and therefore is not subject to commodity tax upon removal from the manufacturer’s premises or upon importation; and (3) if a manufactured or imported TV tuner alone or a machine equipped with a TV tuner function, and its main body is not equipped with a TV display, and if its removal from the manufacturer’s premises (or if its importation) is not combined with a TV display at the same time, it shall not be subject to commodity tax upon removal from the manufacturer’s premises or upon importation.” Examination of the purpose of this ruling shows that because a color TV consists of a display unit and a tuner, if a display unit does not identify itself as a TV and its removal from the manufacturer’s premises is not combined with a tuner, it shall not be deemed a “color television set”, and therefore not be subject to commodity tax upon removal from the manufacturer’s premises. Given that the ordinance in dispute did not improperly expand the definition of taxable commodities nor lead to discrimination, it is not in contravention of the principle of taxation by law and the principle of equality. Owing to the evolution of color TV related products and taking into consideration the nature of commodity tax and consumers’ recognition of the main functions of a given single product or a combination of products upon their removal from the manufacturer’s premises, the authorities should enact more specific standards so that the taxpayers may better determine which products are subject to commodity tax and hence facilitate compliance.

The provision of Paragraph 1, Article 32 of the Commodity Tax Act which was amended and promulgated on May 7, 1997 and became effective on January 1, 2002, that: “ In any of the following circumstances, the taxpayer shall be pursued for payment of taxes and fined from 5 to 15 times the amount of tax evaded:1. Failing to complete necessary registration in compliance with Article 19, and illegally manufacturing commodities subject to commodity tax.” is not in contravention of the principle of proportionality under Article 23 of the Constitution. Since J.Y. Interpretation No. 697 has been given by this Yuan to the same effect, it is thus not necessary to repeat what is written therein.
Translated by Wei-Feng Huang of THY Taiwan International Law Offices
Editor's Note Summary of facts: The Petitioner, Tatung Co., failed to apply to the collection authority for registration as a taxable commodity manufacturer and failed to register the taxable commodities before it started production of Plasma Display Panels, Liquid Crystal Displays and TV tuners, which it sold to RT-Mart. Taipei National Tax Administration held that Tatung Co., by removing the two key component parts, i.e., display and tuner, of color TV sets from its manufacturing premises at the same time for sales, was thus obliged to pay commodity tax. It was decided that Tatung Co., should make up the commodity tax at the amount of NT$ 48,204,052, and, pursuant to Subparagraph 1, Article 32 of the Commodity Tax Act, be fined 10 times the sum of tax evaded, namely, NT$ 482,040,500.

Petitioner asserted that the products at issue were not subject to commodity tax, and therefore, initiated administrative litigation, but the suit was finally and conclusively rejected. Petitioner applied for interpretation on the constitutionality of the Court’s application of Subparagraph 2, Paragraph 1, Article 11 of the Commodity Tax Act, Ministry of Finance Ordinance Tai-Tsai-Suei No.09604501870 (June 14, 2007) and Article 32 of the Commodity Tax Act which was amended and promulgated on May 7, 1997 and became effective on January 1, 2002, to the final and conclusive judgment.
Opinion
(Files)
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