“受益所有人”制度研究
发布时间：2018-07-31 08:45
【摘要】：为了获得财政收入以满足社会公共的需要,国家凭借其政治与公共权力向纳税人强制征收税款,对社会剩余产品进行分配。起初,征税对象仅局限在一国的国民范围之内。随着生产力的不断进步,商品交换的日益频繁,资本主义经济开始萌芽。资本主义国家对外进行资本输出,促进了国际投资与贸易的不断发展。跨国公司成为经济全球化中的主要力量,促进了资金、技术、人才等在世界范围内的循环流动。这种支出与收入的国际化使国际税收成为了必然。各国为了保护自己的财政收入与经济利益,纷纷向跨国投资者从本国境内取得的收入课征税款。但各国税收制度存在差异,管辖领域也有所不同,易导致重复征税的问题,即跨国纳税人基于同一笔所得缴纳两次税款。为了促进相互间的经济往来,明确各自的税收管辖权和跨国纳税人取得所得的应缴税款,各国开始签订国际税收协定。基于促进缔约国间人才、货币以及商品的流动等考虑,缔约国双方在协定中往往给予对方一些税收优惠待遇,通常规定了比国内法较低的税率。有些非缔约国跨国纳税人为了谋求经济利益,伪装成缔约国一国居民,套取税收协定的优惠待遇,影响了所得来源国的税收收入,造成了国际税收协定的滥用。为防止滥用行为及增强税收协定的统一性,OECD与联合国分别在各自范本的有关条款中援引了“受益所有人”制度。这些范本及注释成为了日后各国签订税收协定的参考,却从未对“受益所有人”做出明确的定义,也未能够减少适用中产生的分歧与困难。不仅学术界对此争论不休,各国的认定也不尽相同,甚至是同一国家不同法院或法官对同一个案件中受益所有人的认定也各有不同。随着改革开放的不断深入,跨国经济成分比重的不断提高,要求认定税收协定受益所有人的申请也不断增多,但税务机关因缺少认定依据而左右为难。从2009年起,国家税务总局先后颁布了601号文、2012年30号公告、2014年24号公告等规范性文件,明确了我国对受益所有人身份的认定,在实践中对于“受益所有人”的认定起到了巨大的指导作用。本文分为导言、正文、结语三个部分,其中正文为四章。第一章:“受益所有人”制度概述。首先介绍了“受益所有人”制度的提出及发展,“受益所有人”制度最早产生于英美法系的信托制度,其后跨越部门法的发展进入国际国际法领域,OECD将其引入协定范本后逐渐为各国使用,用以防止不符合身份的第三国居民对税收协定的滥用;其次探讨了“受益所有人”概念的界定,由于OECD在一开始引入“受益所有人”制度时没有对其作出明确定义,其后在历次修订范本中也未能达成一致意见,各国在适用该规则是都依据其本国国内税法的规定。学界对于“受益所有人”概念的界定也是各有千秋。我国在税务机关发布的规范性文件中对于“受益所有人”概念也作出了一般界定,并从反面列举了不宜认定为“受益所有人”的情形。最后阐述了“受益所有人”制度设立的意义:一来可以维护所得来源国的税收利益,二来可以维护良好的国际竞争环境。第二章:国外有关“受益所有人”制度的实践。分别选取英美法系和大陆法系国家对于“受益所有人”的经典税务司法实践案例,通过具体的案例了解各国对于“受益所有人”身份认定的标准。英美法系国家往往采用“实质优于形式”的原则对“受益所有人”身份进行解读。在印都国际金融公司案中,英国法院第一次对“受益所有人”概念作出解释,强调经济实质分析法,不局限于法律或技术层面,应当刺破伪装的面纱,杜绝对税收协定的滥用;在美国的税务司法实践中,也贯彻了“实质高于形式的”原则进行身份认定;而大陆法系国家通常基于法律层面进行理解,严格遵循字面解释。第三章:我国有关“受益所有人”制度规定的内容及税务实践。在国税函【2009】601号文中,我国首次对于“受益所有人”作出了规定,并且列举了不利于“受益所有人身份”认定的七项因素;2012年30号公告指出:明确依据“实质重于形式”认定“受益所有人”身份,设定了“安全港规则”,并且强调“不能仅因某项不利因素的存在而做出否定或肯定的认定”;2014年30号公告,专门就委托投资情况下“受益所有人”身份的认定问题作出了规定,对认定程序作了较为细致的规定。介绍了2012年青岛国税否定某合资企业“受益所有人”身份认定,成功追回六千多万税款的案例。第四章:我国“受益所有人”制度存在的问题及解决措施。针对我国关于“受益所有人”制度的相关规定及税务实践,指出我国“受益所有人”制度尚存在规范文件法律层级低、规定模糊、税务机关自身不足等问题,提出应当提高法律层级、明确规定、完善税务机关自身问题的建议。
[Abstract]:In order to obtain financial revenue to meet the needs of the public, the state forces the taxpayer to impose tax on the taxpayer by virtue of its political and public power. At first, the object of taxation is limited to the national scope of a country. With the continuous progress of the productive forces, the increasing frequency of commodity exchange and the beginning of the capitalist economy. The capital output of the capitalist countries has promoted the continuous development of international investment and trade. Transnational corporations have become the main force in the economic globalization. It has promoted the circulation of capital, technology and talents in the world. International tax has become a necessity for this kind of expenditure and income internationalization. Their financial income and economic benefits have been paid to the income tax of transnational investors from their domestic territory. However, there are differences in the tax system of various countries and different jurisdictions, which can easily lead to the problem of duplication of taxes. That is, transnational taxpayers pay two taxes on the basis of the same income. From the tax jurisdiction and the income tax payment obtained by transnational taxpayers, countries have begun to sign international tax agreements. Based on the consideration of the promotion of talent, currency and commodity flow among States parties, the parties in the contracting parties often give some tax preferential treatment to each other in the agreement, and have set a lower tax rate than the domestic law. Some are not banned. In order to seek economic benefits, the multinational taxpayers of some countries, disguised as the residents of a state of a Contracting State, arbitrage preferential treatment of tax agreements, affect the tax revenue of the countries of origin, and cause the abuse of international tax agreements. In order to prevent abuse and enhance the unity of tax agreements, OECD and the United Nations are in the relevant articles of their respective models. The "beneficiary" system has been quoted as a reference to the signing of a tax agreement between countries in the future, but it has never made a clear definition of the "beneficiary" and has not been able to reduce the differences and difficulties in its application. Not only does the academic circle argue about this, but the identification of countries is not the same, or even the same country. With the continuous deepening of the reform and opening up and the increasing proportion of the transnational economic components, the application of the beneficiary of the tax agreement is increasing, but the tax authorities are in a dilemma because of the lack of identification basis. From 2009, the state tax has been made. The Administration issued a number 601, the 2012 30 bulletin, the 24 Bulletin of 2014, and other normative documents, which clearly defined the identity of the beneficiary in our country. In practice, it has played a great guiding role in the identification of the "beneficiary". This article is divided into introduction, text, and conclusion of three parts, of which the text is four chapters. The first chapter: " The introduction and development of the system of beneficiary owners first introduced the system of "beneficiary owners". The "beneficiary" system was first produced in the trust system in Anglo American law system, followed by the development of the department law in the field of international law and international law. After introducing it to the model of the agreement, OECD has gradually used it for various countries to prevent incompatibility. The third country residents' abuse of tax agreements; secondly the definition of the concept of "beneficiary owners" is discussed. Since OECD has not made a clear definition of the "beneficiary" system at the beginning, the subsequent revision of Fan Benzhong has also failed to agree on the application of the rule to its domestic tax. The definition of the concept of "beneficiary owner" is also distinct in the academic circle. In the normative documents issued by the tax authorities, China has also made a general definition of the concept of "beneficiary owner", and enumerates the situation that should not be recognized as "beneficiary owner" from the opposite side. Finally, the system of "beneficiary owners" is set forth. The meaning of standing: one can maintain the tax benefit of the source country of the income, and the second is to maintain a good international competitive environment. The second chapter: the practice of the "beneficiary owner" system in foreign countries. The case of the classic Tax Judicial Practice of the "beneficiary owners" in the common law and civil law countries is selected, and the specific cases are adopted. The United States law countries often use the principle of "substantially better than form" to interpret the identity of "beneficiary owners" in the common law countries. In the case of Indo International Finance Corporation, the British court first explained the concept of "beneficiary owner", emphasizing the economic essence analysis method, not limited. At the legal or technical level, the veil of disguise should be pierced and Du absolute the abuse of the tax agreement; in the tax judicial practice of the United States, the "substance above the form" is also carried out in the identity recognition; the civil law countries are generally understood on the basis of the legal level and Yan Ge follows the literal interpretation. The third chapter: our country is concerned with the "benefit" The content and tax practice stipulated in the system. In the state tax letter (2009) No. 601, China has made the first provisions on the "beneficiary" and enumerated the seven factors that are not beneficial to the identification of the "beneficiary's identity"; the 2012 30 proclamation points out that the "benefit owner" is clearly identified according to the "substance in the form". Identity, set the "safety port rules", and stressed that "can not be denied or affirmed only because of the existence of a certain disadvantage"; 2014 30 bulletin, specifically to entrust the status of the "benefit owner" in the status of the identification of the status of the identification of the problem made a more detailed provisions. Introduced the 2012 young people. The island national tax denies the identification of the "beneficiary owner" of a joint venture and the case of successful recovery of the about sixty million tax. Chapter fourth: the existing problems and solutions of the "beneficiary owner" system in our country. In view of the relevant regulations and tax practices of the "beneficiary owner" system in our country, it is pointed out that the system of "beneficiary owners" in our country remains in existence. In the standard documents, the legal hierarchy is low, the regulations are vague and the tax authorities are inadequate, and some suggestions should be made to improve the legal level, make clear the regulations and improve the problems of the tax authorities themselves.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.22
本文编号：2155051
[Abstract]:In order to obtain financial revenue to meet the needs of the public, the state forces the taxpayer to impose tax on the taxpayer by virtue of its political and public power. At first, the object of taxation is limited to the national scope of a country. With the continuous progress of the productive forces, the increasing frequency of commodity exchange and the beginning of the capitalist economy. The capital output of the capitalist countries has promoted the continuous development of international investment and trade. Transnational corporations have become the main force in the economic globalization. It has promoted the circulation of capital, technology and talents in the world. International tax has become a necessity for this kind of expenditure and income internationalization. Their financial income and economic benefits have been paid to the income tax of transnational investors from their domestic territory. However, there are differences in the tax system of various countries and different jurisdictions, which can easily lead to the problem of duplication of taxes. That is, transnational taxpayers pay two taxes on the basis of the same income. From the tax jurisdiction and the income tax payment obtained by transnational taxpayers, countries have begun to sign international tax agreements. Based on the consideration of the promotion of talent, currency and commodity flow among States parties, the parties in the contracting parties often give some tax preferential treatment to each other in the agreement, and have set a lower tax rate than the domestic law. Some are not banned. In order to seek economic benefits, the multinational taxpayers of some countries, disguised as the residents of a state of a Contracting State, arbitrage preferential treatment of tax agreements, affect the tax revenue of the countries of origin, and cause the abuse of international tax agreements. In order to prevent abuse and enhance the unity of tax agreements, OECD and the United Nations are in the relevant articles of their respective models. The "beneficiary" system has been quoted as a reference to the signing of a tax agreement between countries in the future, but it has never made a clear definition of the "beneficiary" and has not been able to reduce the differences and difficulties in its application. Not only does the academic circle argue about this, but the identification of countries is not the same, or even the same country. With the continuous deepening of the reform and opening up and the increasing proportion of the transnational economic components, the application of the beneficiary of the tax agreement is increasing, but the tax authorities are in a dilemma because of the lack of identification basis. From 2009, the state tax has been made. The Administration issued a number 601, the 2012 30 bulletin, the 24 Bulletin of 2014, and other normative documents, which clearly defined the identity of the beneficiary in our country. In practice, it has played a great guiding role in the identification of the "beneficiary". This article is divided into introduction, text, and conclusion of three parts, of which the text is four chapters. The first chapter: " The introduction and development of the system of beneficiary owners first introduced the system of "beneficiary owners". The "beneficiary" system was first produced in the trust system in Anglo American law system, followed by the development of the department law in the field of international law and international law. After introducing it to the model of the agreement, OECD has gradually used it for various countries to prevent incompatibility. The third country residents' abuse of tax agreements; secondly the definition of the concept of "beneficiary owners" is discussed. Since OECD has not made a clear definition of the "beneficiary" system at the beginning, the subsequent revision of Fan Benzhong has also failed to agree on the application of the rule to its domestic tax. The definition of the concept of "beneficiary owner" is also distinct in the academic circle. In the normative documents issued by the tax authorities, China has also made a general definition of the concept of "beneficiary owner", and enumerates the situation that should not be recognized as "beneficiary owner" from the opposite side. Finally, the system of "beneficiary owners" is set forth. The meaning of standing: one can maintain the tax benefit of the source country of the income, and the second is to maintain a good international competitive environment. The second chapter: the practice of the "beneficiary owner" system in foreign countries. The case of the classic Tax Judicial Practice of the "beneficiary owners" in the common law and civil law countries is selected, and the specific cases are adopted. The United States law countries often use the principle of "substantially better than form" to interpret the identity of "beneficiary owners" in the common law countries. In the case of Indo International Finance Corporation, the British court first explained the concept of "beneficiary owner", emphasizing the economic essence analysis method, not limited. At the legal or technical level, the veil of disguise should be pierced and Du absolute the abuse of the tax agreement; in the tax judicial practice of the United States, the "substance above the form" is also carried out in the identity recognition; the civil law countries are generally understood on the basis of the legal level and Yan Ge follows the literal interpretation. The third chapter: our country is concerned with the "benefit" The content and tax practice stipulated in the system. In the state tax letter (2009) No. 601, China has made the first provisions on the "beneficiary" and enumerated the seven factors that are not beneficial to the identification of the "beneficiary's identity"; the 2012 30 proclamation points out that the "benefit owner" is clearly identified according to the "substance in the form". Identity, set the "safety port rules", and stressed that "can not be denied or affirmed only because of the existence of a certain disadvantage"; 2014 30 bulletin, specifically to entrust the status of the "benefit owner" in the status of the identification of the status of the identification of the problem made a more detailed provisions. Introduced the 2012 young people. The island national tax denies the identification of the "beneficiary owner" of a joint venture and the case of successful recovery of the about sixty million tax. Chapter fourth: the existing problems and solutions of the "beneficiary owner" system in our country. In view of the relevant regulations and tax practices of the "beneficiary owner" system in our country, it is pointed out that the system of "beneficiary owners" in our country remains in existence. In the standard documents, the legal hierarchy is low, the regulations are vague and the tax authorities are inadequate, and some suggestions should be made to improve the legal level, make clear the regulations and improve the problems of the tax authorities themselves.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.22
【参考文献】
相关期刊论文 前1条
1 郎平;;“受益所有人”制度在我国的新发展[J];法制博览(中旬刊);2013年07期
，本文编号：2155051
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