亏损交易反避税规则研究
发布时间：2018-08-19 15:51
【摘要】：亏损交易是企业为获取自己或目标公司税收上的累计未弥补亏损优势而进行的税收安排。交易主体以合法的并购形式掩饰其利用税收法律的漏洞交易税收优势的实质。这种交易不具有正当的并购商业目的,破坏市场公平竞争环境,违反税收公平原则,是一种脱法避税行为。世界各主要经济体或早或晚都认识到了亏损交易行为的存在,并在通过对其存在的前提公司亏损结转弥补规则进行限制性规定,以预防这种交易行为的发生。其中,美国对亏损交易(loss trafficking)的规定已有历史。最早可以追溯到1939年出台的26 USCS的第269条,但后来因为此条中所规定的避税目的有举证难的现象不具有适用性而被置空。故,1954国税又出台了第382条来做修正,一直沿用至今。近期(2008年)IRS(美国国税局)又出台了一个规定(notice)对银行的并购做出例外规定,即如果并购主体银行并购有破产或有债务的其他银行,其未还的贷款和抵押可以向后结转(carry forward),该情况并不受382条的限制,可以一次性抵税或者作为减免额减少当年应纳税额。在日本,企业重组时依据是否可以承继亏损,合并被分为适格合并(符合条件的合并)和非适格合并(不符合条件的合并),对于适格合并以及类似适格合并的适格分立,不仅资产、负债的账面金额可以承继,一定数额的亏损也可以承继。其中,对于适格分立,要适用亏损弥补必须满足的条件包括,被分立企业在分立前所经营的主要事业内容必须为分立后企业继续经营等。在我国,首先,税收立法层级低,税收法律概念并未被普通群众熟知,税收法律意识有待提高。大多数人无法分清合理避税、脱法避税的界线。在制度设计上,我国没有税收法典,可喜的是2015年3月15日全国人大表决通过《立法法》修正案,此通过版本为送审稿第三版,其中第8条明确规定“税种的设立、税率的确定和税收征收管理等税收基本由法律规定”,从此,税收法定基本在中国明确,2015年3月15日是中国税收法定一个阶段性的里程碑。其次,与改革开放一致,我国反避税法律规制实践起始于20世纪80年代末,从深圳开始试点,主要集中在转移定价方面。1994年税制的确立,借鉴外国经验的基础上,逐步完善了转移定价税制。2004年新的一轮改革,主要立法成果有《企业所得税法》以及《特别纳税调整实施办法(试行)》。尤其是《企业所得税法》通过第六章“特别纳税调整”专章规制避税,但我国并没有专门的反避税执行部门,相关执行条款集中在《税收征管法》以及各类法规文件中。再者,我国对亏损交易的规制尚处于启蒙状态,实践中也多是借用一般反避税条款或者限制转移定价的反避税规定处理。所以,目前对亏损交易的预防集中的体现在对亏损结转的限制适用的条款中,没有具体的针对性的反避税规则。其中可以调整亏损交易的一般反避税条款是特殊反避税条款的兜底条款,有导致权力滥用的风险,所以严格意义上说,我国目前没有特别明确的限制亏损交易的规则。现行关于亏损结转适用以及并购重组中亏损结转适用的相关立法成果,除了《企业所得税法》还有国家税务总局颁布的有关企业重组业务所得税处理的文件公告。本文欲通过整理得出目前亏损交易的规制现状,并通过分析国内案例以及日本类似情况下限制亏损交易的相关制度,总结出限制亏损交易所欠缺的措施以图形成借鉴。本文主题是对亏损交易行为进行规制的研究,综合运用比较分析、实证研究等多种分析方法,梳理概念性质,明确问题所在,讨论规则设置。在比较和借鉴日本税收立法的基础上,为完善我国亏损交易规则设立,略尽绵薄之力。具言之,本论文共计分为五个部分:第一部分导论,主要内容有:第一,亏损交易行为存在的背景。经济贸易的复杂化和国际化为纳税人在各种交易环节筹划逃避纳税义务提供了更多的可能性,避税行为已然成为重要的国际课题。完善反避税制度,不仅仅是为了保护国家税收满足国家的财政需求,更是为了维护“税收公平原则”。本文所要讨论的“亏损交易”即是企业并购中规避所得税的常见的避税方式之一。这种方式所能实现的先天条件是各国税法中规定的:净经营亏损递延条款。第二,学者的研究成果:目前我国学界对亏损交易的学术研究甚少,而且主要集中在介绍国际上的相关制度,缺乏跟国内的对比以及借鉴。主要有吴申军博士在2004年博士在读期间通过数篇文章介绍并对比了德国、美国和澳大利亚等国关于亏损结转弥补以及对亏损结转的限制性规定。但仅限于介绍和比较他国,未对我国相关制度进行比较,亦未形成明确的可借鉴意见。另有黄茂荣教授在《税法总论》一书中对亏损结转的法理有所涉猎。第三,本文的研究方法为实证研究与比较分析。第二部分依次介绍了:第一,亏损交易行为的概念。第二,亏损交易行为存在的前提亏损递延条款的概念,亏损结转中“亏损”的范畴,列举比较了财务中的亏损概念和税法上亏损概念的区别。以及准许亏损结转的原因。第三,亏损交易行为产生的平台企业并购重组。包括企业重组的概念,我国对企业重组中所得税处理相关立法的成果介绍,并对企业重组中容易混淆的相关概念进行了厘清整理。第三部分介绍了亏损交易反避税规则在我国制度中的沿革、现状。首先是总结并购重组中对亏损结转适用的相关规定在我国立法中的历史沿革。包括内外自企业分税时期的免税重组类型,及亏损结转弥补适用的规定。分析了我国亏损交易反避税规则的现状,包括立法成果的概况以及进一步详细的介绍,主要集中在对一般反避税条款以及亏损结转在并购重组中的适用现状分析。总结了现行免税重组的类型,以及亏损结转在并购重组中的适用现状。并通过案例解释了吸收合并在特殊性税务处理条件下如何进行亏损承继弥补。第四部分是对亏损交易反避税规则的反思。首先通过案例发现亏损交易在我国反避税规则中的漏洞。然后介绍了亏损交易反避税规则在日本的税收制度中的沿革和现状,以及案例中的情况在日本税法中相关对应的设置。其后,进行反思目前可以完善的举措,共列举了七点。第五部分为文章的结语,总结亏损交易的现状,指出不足,期许未来。
[Abstract]:Loss-making transaction is a taxation arrangement for an enterprise to obtain its own or target company's accumulative uncompensated loss advantage in taxation. The principle of anti-tax fairness is an act of tax evasion. Major economies in the world recognize the existence of loss trading sooner or later, and restrict the rules of compensation for corporate losses on the premise of its existence in order to prevent the occurrence of such transactions. The regulation has a long history. It can be traced back to Article 269 of the 26USCS issued in 1939, but was later blanked because the purpose of tax avoidance stipulated in this article is difficult to prove. Therefore, the 1954 State Tax issued Article 382 to amend, has been used to date. Recently (2008) IRS (the United States Revenue Service) introduced a new one. Notice makes exceptions to banks'mergers and acquisitions, i.e. if the main bank acquires other banks with bankrupt contingent liabilities, its outstanding loans and mortgages can be carried forward, which is not subject to section 382 and can be deducted in one lump sum or as a deduction to reduce the current tax payable. When reorganizing, mergers are divided into eligible mergers (eligible mergers) and unqualified mergers (unqualified mergers) according to whether losses can be inherited. For eligible mergers and similar eligible mergers, not only assets and liabilities can be inherited, but also a certain amount of losses can be inherited. In China, first of all, the level of tax legislation is low, the concept of tax law is not well known to the general public, and the awareness of tax law needs to be improved. In the system design, there is no tax code in China, but the National People's Congress voted on March 15, 2015 to adopt the amendment to the Legislative Law. This edition is submitted to the third edition of the draft for examination. Article 8 clearly stipulates that "the establishment of taxes, the determination of tax rates and the administration of tax collection and other taxes are basically stipulated by law". Therefore, the tax law is basically clear in China, March 15, 2015 is a milestone in China's tax law. Secondly, consistent with the reform and opening up, China's anti-tax avoidance legal regulation practice began in the late 1980s, and began to pilot from Shenzhen, mainly focusing on transfer pricing. The establishment of the tax system in 1994, drawing on foreign experience. On the basis of this, the transfer pricing tax system has been gradually improved. In 2004, the new round of reform, the main legislative results are < Enterprise Income Tax Law > and < Special Tax Adjustment Implementation Measures (Trial)>. Especially < Enterprise Income Tax Law > through Chapter 6 "Special Tax Adjustment" special regulations to regulate tax avoidance, but China does not have a special tax avoidance enforcement department, related. Moreover, the regulation of loss trading in China is still in an enlightening state. In practice, it is mostly dealt with by borrowing general anti-tax avoidance provisions or restricting transfer pricing anti-tax avoidance provisions. There is no specific Anti-Avoidance Rule in the applicable clauses. The General Anti-Avoidance clause which can adjust loss trading is the bottom clause of the special anti-avoidance clause, and there is a risk of abuse of power. So strictly speaking, there are no specific rules to restrict loss trading in China. In addition to the "Enterprise Income Tax Law" and the announcement of documents issued by the State Administration of Taxation on the income tax treatment of enterprise restructuring business, this paper intends to sort out the current regulatory status of loss-making transactions, and through the analysis of domestic cases and similar circumstances in Japan. The main theme of this paper is to study the regulation of loss trading behavior, comprehensively use comparative analysis, empirical research and other analytical methods, sort out the conceptual nature, clarify the problems, and discuss the rules. On the basis of legislation, this paper makes a little effort to perfect the establishment of loss trading rules in China. In other words, this paper is divided into five parts: the first part is the introduction, the main contents are as follows: First, the background of loss trading behavior. With more possibilities, tax avoidance has become an important international issue. Improving the anti-tax avoidance system is not only to protect the national tax revenue to meet the financial needs of the country, but also to safeguard the principle of "tax equity". First, the congenital conditions that can be achieved by this way are stipulated in the tax laws of various countries: the deferred clause of net operating losses. Second, scholars'research results: at present, academic research on loss trading in China is very little, and mainly focuses on introducing relevant international systems, lacking of comparison with domestic and reference. During his study in 2004, Dr. Huang introduced and contrasted several articles on the deficit carry-over compensation and the restrictive provisions on the deficit carry-over in Germany, the United States and Australia. The second part introduces the concept of loss trading behavior in turn. Second, the concept of deferred loss clause is the premise of the existence of loss trading behavior. The category of "loss" in loss carrying forward is listed and compared with finance. The difference between the concept of loss in business and the concept of loss in tax law, as well as the reasons for permitting loss carry-over. Thirdly, the merger and reorganization of platform enterprises resulting from loss trading, including the concept of enterprise reorganization, the results of relevant legislation on income tax treatment in enterprise reorganization in China, and the related concepts easily confused in enterprise reorganization are introduced. The third part introduces the evolution and current situation of the anti-tax avoidance rules for loss transactions in China's system. First, it summarizes the historical evolution of the relevant provisions for loss carry-over in M&A and reorganization in China's legislation, including the types of tax-free reorganization in the period of tax sharing between domestic and foreign enterprises, and the provisions for compensation for loss carry-over. This paper summarizes the current situation of anti-tax avoidance rules for loss-making transactions in China, including the overview of legislative achievements and further detailed introduction, mainly focusing on the general anti-tax avoidance provisions and the application of loss carry-over in mergers and acquisitions reorganization. The fourth part is a reflection on the anti-tax avoidance rules of loss trading. Firstly, the loopholes of loss trading in China's anti-tax avoidance rules are found through the case. Then the evolution of the anti-tax avoidance rules of loss trading in Japan's tax system is introduced. The fifth part is the conclusion of the article, summarizes the current situation of loss trading, points out the shortcomings and looks forward to the future.
【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：2192125
[Abstract]:Loss-making transaction is a taxation arrangement for an enterprise to obtain its own or target company's accumulative uncompensated loss advantage in taxation. The principle of anti-tax fairness is an act of tax evasion. Major economies in the world recognize the existence of loss trading sooner or later, and restrict the rules of compensation for corporate losses on the premise of its existence in order to prevent the occurrence of such transactions. The regulation has a long history. It can be traced back to Article 269 of the 26USCS issued in 1939, but was later blanked because the purpose of tax avoidance stipulated in this article is difficult to prove. Therefore, the 1954 State Tax issued Article 382 to amend, has been used to date. Recently (2008) IRS (the United States Revenue Service) introduced a new one. Notice makes exceptions to banks'mergers and acquisitions, i.e. if the main bank acquires other banks with bankrupt contingent liabilities, its outstanding loans and mortgages can be carried forward, which is not subject to section 382 and can be deducted in one lump sum or as a deduction to reduce the current tax payable. When reorganizing, mergers are divided into eligible mergers (eligible mergers) and unqualified mergers (unqualified mergers) according to whether losses can be inherited. For eligible mergers and similar eligible mergers, not only assets and liabilities can be inherited, but also a certain amount of losses can be inherited. In China, first of all, the level of tax legislation is low, the concept of tax law is not well known to the general public, and the awareness of tax law needs to be improved. In the system design, there is no tax code in China, but the National People's Congress voted on March 15, 2015 to adopt the amendment to the Legislative Law. This edition is submitted to the third edition of the draft for examination. Article 8 clearly stipulates that "the establishment of taxes, the determination of tax rates and the administration of tax collection and other taxes are basically stipulated by law". Therefore, the tax law is basically clear in China, March 15, 2015 is a milestone in China's tax law. Secondly, consistent with the reform and opening up, China's anti-tax avoidance legal regulation practice began in the late 1980s, and began to pilot from Shenzhen, mainly focusing on transfer pricing. The establishment of the tax system in 1994, drawing on foreign experience. On the basis of this, the transfer pricing tax system has been gradually improved. In 2004, the new round of reform, the main legislative results are < Enterprise Income Tax Law > and < Special Tax Adjustment Implementation Measures (Trial)>. Especially < Enterprise Income Tax Law > through Chapter 6 "Special Tax Adjustment" special regulations to regulate tax avoidance, but China does not have a special tax avoidance enforcement department, related. Moreover, the regulation of loss trading in China is still in an enlightening state. In practice, it is mostly dealt with by borrowing general anti-tax avoidance provisions or restricting transfer pricing anti-tax avoidance provisions. There is no specific Anti-Avoidance Rule in the applicable clauses. The General Anti-Avoidance clause which can adjust loss trading is the bottom clause of the special anti-avoidance clause, and there is a risk of abuse of power. So strictly speaking, there are no specific rules to restrict loss trading in China. In addition to the "Enterprise Income Tax Law" and the announcement of documents issued by the State Administration of Taxation on the income tax treatment of enterprise restructuring business, this paper intends to sort out the current regulatory status of loss-making transactions, and through the analysis of domestic cases and similar circumstances in Japan. The main theme of this paper is to study the regulation of loss trading behavior, comprehensively use comparative analysis, empirical research and other analytical methods, sort out the conceptual nature, clarify the problems, and discuss the rules. On the basis of legislation, this paper makes a little effort to perfect the establishment of loss trading rules in China. In other words, this paper is divided into five parts: the first part is the introduction, the main contents are as follows: First, the background of loss trading behavior. With more possibilities, tax avoidance has become an important international issue. Improving the anti-tax avoidance system is not only to protect the national tax revenue to meet the financial needs of the country, but also to safeguard the principle of "tax equity". First, the congenital conditions that can be achieved by this way are stipulated in the tax laws of various countries: the deferred clause of net operating losses. Second, scholars'research results: at present, academic research on loss trading in China is very little, and mainly focuses on introducing relevant international systems, lacking of comparison with domestic and reference. During his study in 2004, Dr. Huang introduced and contrasted several articles on the deficit carry-over compensation and the restrictive provisions on the deficit carry-over in Germany, the United States and Australia. The second part introduces the concept of loss trading behavior in turn. Second, the concept of deferred loss clause is the premise of the existence of loss trading behavior. The category of "loss" in loss carrying forward is listed and compared with finance. The difference between the concept of loss in business and the concept of loss in tax law, as well as the reasons for permitting loss carry-over. Thirdly, the merger and reorganization of platform enterprises resulting from loss trading, including the concept of enterprise reorganization, the results of relevant legislation on income tax treatment in enterprise reorganization in China, and the related concepts easily confused in enterprise reorganization are introduced. The third part introduces the evolution and current situation of the anti-tax avoidance rules for loss transactions in China's system. First, it summarizes the historical evolution of the relevant provisions for loss carry-over in M&A and reorganization in China's legislation, including the types of tax-free reorganization in the period of tax sharing between domestic and foreign enterprises, and the provisions for compensation for loss carry-over. This paper summarizes the current situation of anti-tax avoidance rules for loss-making transactions in China, including the overview of legislative achievements and further detailed introduction, mainly focusing on the general anti-tax avoidance provisions and the application of loss carry-over in mergers and acquisitions reorganization. The fourth part is a reflection on the anti-tax avoidance rules of loss trading. Firstly, the loopholes of loss trading in China's anti-tax avoidance rules are found through the case. Then the evolution of the anti-tax avoidance rules of loss trading in Japan's tax system is introduced. The fifth part is the conclusion of the article, summarizes the current situation of loss trading, points out the shortcomings and looks forward to the future.
【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2条
1 李维萍;;公司并购的税收协同效应及观点分析[J];涉外税务;2007年05期
2 张梅良;;亏损递延条款避税功能在企业购并中的运用[J];商场现代化;2006年15期
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