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It has been written in the laws of Taiwan since the beginning of the inherence tax that the property of an inheritee which is given to his/her spouse, the inheritors specified in Articles 1138 and 1140 of the Civil Code and the spouses of the inheritors mentioned above two years (which was 3 years and 5 years) before the inheritee passes away is considered the inheritance of the late inheritee at the time of his/her death, and shall be included in the total inheritance for the said tax to prevent the escape of high estate tax of accumulated rate by giving properties away, lowering the tax rate. However, the purpose of the legislation mentioned above was no longer served as the estate tax rate was decreased to 10% on Jan 23, 2009, which left no room to maneuver for tax savings. In addition, when the Civil Code was amended in 2009, Article 1148-1 was added by referencing Paragraph 1, Article 15-1 of the Estate and Gift Tax Act, the latter protecting the creditor’s rights in the public law while the former focusing on protection of the creditor’s rights in the private law. With impacts from change of legal inheritance to “inclusive inheritance and limited liability” and single rate for estate and gift taxes, it is worth investigating the necessity of such a system. A case was designed in this study to compare the differences in tax savings by planning to give away properties as gifts before death in the periods of accumulated tax rate and single tax rate, as to review whether the existence of this system is necessary. The case numbered 2006 Pan-Tzu No. 01428 by the Supreme Administrative Court was used as an example. Local literatures, articles and reports were collected and reviewed. Suggestions for legislative amendments were proposed based on tax laws and systems, legislation of estate and gift taxes, protection of tax payers’ property rights, the rights of successive creditors, principle of tax equity, and principle of ability to pay, legal precedents of reference, academic opinions, explanatory orders, interpretations and evaluations of Ministry of Justice and Ministry of Finance, review of Article 1, Article 6, Paragraph 2 of Article 11, Article 7 and Article 15 of the Estate and Gift Tax Act, Article 6 of the Enforcement Rules of the Estate and Gift Tax Act, Articles 1148-1 and 1153 of the Civil Code in the hope of providing better protection for the treasury incomes and the rights of creditors.
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