An observation especially on the sociological feature of fiscal history is to be
emphasized.1 We tend to use the sociological factors of tax power, which may prophesize a limitation of taxation in every social condition, to emphasize that these sociological factors could never be overlooked in terms of protection of taxpayer’s
rights.
1. the relations between taxation and private property
In a modern state, taxation and private property are closely connected. It is rather conceivable to even say that tax system is a means of the protection of private property.2 In other words, in a constitution which recognizes the system of private property should be a constitution which its revenue system principally relies on taxes, in order to go with the evolving of the times.
2. taxation is the symbol of the power of the modern state
From the standpoint of the ruling power, the functioning of the tax state system, i.e.
1 Such perspective is inspired from a German concept of Finanzsogiologie (fiscal sociology) proposed by R. Goldscheid in 1917 yet promoted by his opponent Schumpeter during the time in 1918. The so-called fiscal sociology had been quite on the fade for decades after the promotion and was introduced to other countries, especially in Japan, see generally Sasaki, in Backhaus(2005).
The definition or the content of Finanzsoziologie proper, however, has never been precise, opposing opinions appeared, See E.R.A. Seligman(1926).
Recently, discussions seems to be in accumulation again and in a worldwide dimension. See M.
McLure(2006), N. Jinno(2002), R.Wagner(2008), etc.
various state financial actions derived from taxation power, the power to tax thus not only becomes the symbol of the state’s power, but as well, the impositions based on such power becomes the main avenue of the state to intervene in people’s life and becomes the principal forming of the relations with people. At the same time, however, taxation power also becomes the most influential way which state may affect people.
3. reflections on the protection of basic rights centered on tax payers
Since what constitution can guarantee, are chiefly basic rights, human beings as the subjects of basic rights are certainly the main focus of constitution law. Thus, in the field of fiscal constitution, the mainstream of thoughts shall not overflow the categories of the protection of taxpayer’s rights.
However, in modern sense of constitution, in order to achieve this idea of protection of human rights, tax power is easily to be conceived as an infringement of people’s basic rights. In other words, how to restrain the unleashed wild horse of tax power through the values of constitution in order to ensure people of their free exercising of their basic rights has long been the fundamental question of fiscal constitution in the modern state.
But such kind of restraining produces a certain degree of detachment between normality
and reality. The explanation of such is to be elaborated in the following two points.
First, conflicts between state’s taxation power and people’s property rights
The genesis of “infringement”
The fact that modern state imposes taxes on people is actually a prerequisite of the freedom of people’s property, i.e. the foundations of private property system. Without tax revenues supporting state’s engagement in necessary public services, people lose their basis for subsistence. But considering the ways of how taxation are being executed (ex. tax administration), taxpayers, finding that certain part of their incomes being taken beyond their reach and that the reason is due to taxation, are expected to tend to ascribe the blame to taxation. This mentality of ascription becomes commonplace especially in the modern society which money becomes the major form of transaction, meaning that once people could no longer satisfy themselves through consumption with their property (spending what they have earned), they think of taxation as infringement of their freedom of property so easily.
The confrontation between tax power and property rights
What’s more, the relative increase of tax payers’ disposable property due to the fulfillment of certain tax exemptions, tax payers also tend to think of such increase as a
concession of tax power to property rights. Such concessions, strengthening people’s
thinking of regarding the decrease of their disposable property, contributes to the generation of a contrasting or confronting mentality. And this mentality gradually pushes the power of taxation in the place against property rights. The presence of such seemingly contrasting phenomenon is in turn in need of analysis in the discussions of the limitations of taxation.
Second, the gap in reasoning between the will of the ruling authorities and the
legitimacy of taxation
The development of the concept of “human rights” is actually a result of oppression—an ideology which came into shape through countless times of rebellions and overthrows against ruler’s policies. In other words, the generation of the concept of right is simply a reaction from the ruled towards the rulers and oftentimes these reactions results from unreasonable tax burdens imposed by the rulers.1
1 For example, it is said that in the last 30 years of 18th century in France, the volume of the collection of taxes did not raise too high, however, tax payers weakened and consequently results in a fiscal reaction
However, if we go back to the reasoning that constitutional legitimacy of people’s tax
burden derives from the legitimacy of taxes (ex. No taxation without representation),
what taxpayers are actually against no longer seem appropriate to be entitled
“oppression”. In other words, the constitutional legitimacy of putting limitations on state’s tax power in order to ensure the protection of human rights would lose its ground of reasoning due to the reactionary character sui generis of “rights”. Due to this, how to connect tax power, representing the will of the state, with the legitimacy of tax burden becomes a gap of reasoning needed to be bridged.