我国现行反避税法律制度研究

发布时间：2019-07-06 09:48

【摘要】：避税行为屡见不鲜也屡禁不止,给我国的税收收入和权益带来很大的损失。所以,对我国现行反避税法律制度的研究具有重要的现实意义,更有助于我国税收法治的发展。公司避税给我国社会经济发展带来严重的负面影响,且我国反避税的重点也是公司避税,因此本文主要就公司避税进行探讨。本文先从避税入手,了解避税的本质和法律性质,学术界对避税法律性质的探讨有三个观点,分别是合法说、违法说和脱法说。避税的脱法说是当前的主流学说,避税脱法说主张避税行为不违反法律文意,在形式上合法;实质上背弃了立法意图,违反了实质课税原则,损害了税法的实质正义,具有实质违法性。故避税既抵触了税法目的,同时又无法适用税法,是一种脱法行为。接着本文探讨了反避税制度内部的理论冲突,即税收法定主义和实质课税原则的对立。税收法定主义要求征税机关依据法律规定且经过法定程序进行征税,严格限制国家权力。而实质课税原则并不以税法的明文规定为必要,当课税要件事实的形式与实质不符时,实质课税原则更注重经济实质,以经济事实的实质作为税法的适用依据。税务机关可以对有避税行为的纳税人展开反避税调查并进行适当的纳税调整。但是,从深层次上讲,二者从不同侧面共同维护了税法的公平正义,使税收负担在纳税人之间得到合理分配。值得注意的是,税收法定主义在矛盾对立的双方占据着主导地位。实质课税原则应在税收法定主义的体系要求下适用,才能尽可能的减少其消极作用,并使形式正义和实质正义达成统一。然后本文对我国的反避税立法进程和现阶段法律制度进行了一一梳理,探求其不足,主要缺陷是反避税立法级次低,一般反避税条款举证责任不明晰、税法漏洞多,反避税范围单一狭窄、纳税人权利保障欠缺等。最后根据我国反避税法律制度的现状,针对反避税制度现存缺陷,分别从立法和制度上进行了完善我国反避税工作的法律思考,并提出了一些加强反避税工作的建议,以达到完善我国反避税法律制度的目的。比起将注意力放在反对避税上,健全税法、保证税法的贯彻执行更为重要。只有健全的反避税法律制度,才能为我国接下来的一系列反避税工作提供坚实的法律保障。
[Abstract]:Tax avoidance is often prohibited, which brings great losses to the tax revenue and rights and interests of our country. Therefore, it is of great practical significance to study the current anti-tax avoidance legal system in our country, and it is more helpful to the development of tax rule of law in our country. Corporate tax avoidance has a serious negative impact on the social and economic development of our country, and the focus of anti-tax avoidance in our country is also corporate tax avoidance, so this paper mainly discusses the corporate tax avoidance. This paper starts with tax avoidance and understands the nature and legal nature of tax avoidance. There are three points of view in academic circles on the legal nature of tax avoidance, namely, the theory of legality, the theory of illegality and the theory of illegality. The theory of tax avoidance is the mainstream theory at present. The theory of tax avoidance advocates that tax avoidance is not contrary to the legal meaning and is legal in form; in essence, it reneges on the legislative intention, violates the principle of substantive taxation, damages the substantive justice of the tax law, and has the substantive illegality. Therefore, tax avoidance is not only contrary to the purpose of the tax law, but also unable to apply the tax law, which is a kind of illegal behavior. Then this paper discusses the theoretical conflict within the anti-tax avoidance system, that is, the antagonism between tax legalism and the principle of substantive taxation. Tax legalism requires tax authorities to collect taxes in accordance with the law and through legal procedures, and strictly restrict state power. However, the principle of substantive taxation is not necessary by the express provisions of the tax law. When the form of the important facts of taxation is inconsistent with the substance, the principle of substantive taxation pays more attention to the economic essence, and takes the essence of the economic facts as the basis for the application of the tax law. Tax authorities may carry out anti-tax avoidance investigations and make appropriate tax adjustments to taxpayers with tax avoidance. However, from a deep level, the two together maintain the fairness and justice of the tax law from different aspects, so that the tax burden can be reasonably distributed among taxpayers. It is worth noting that tax legalism occupies a dominant position in the contradictory and antagonistic sides. The principle of substantive taxation should be applied under the requirements of the system of tax legalism in order to reduce its negative effects as much as possible and to unify formal justice and substantive justice. Then this paper combs the legislative process and current legal system of anti-tax avoidance one by one, and explores its shortcomings. The main defects are the low level of anti-tax avoidance legislation, the unclear burden of proof of the general anti-tax avoidance clause, many loopholes in the tax law, the single scope of anti-tax avoidance, the lack of protection of taxpayers' rights, and so on. Finally, according to the present situation of the anti-tax avoidance legal system in our country, and in view of the existing defects of the anti-tax avoidance system, this paper makes some legal thoughts on perfecting the anti-tax avoidance work in our country from the aspects of legislation and system, and puts forward some suggestions for strengthening the anti-tax avoidance work in order to achieve the purpose of perfecting the anti-tax avoidance legal system in our country. It is more important to improve the tax law and ensure the implementation of the tax law than to focus on opposing tax avoidance. Only by perfecting the legal system of anti-tax avoidance can we provide a solid legal guarantee for the next series of anti-tax avoidance work in our country.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.22

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