“受益所有人”制度研究
發(fā)布時間：2018-07-31 08:45
【摘要】：為了獲得財(cái)政收入以滿足社會公共的需要,國家憑借其政治與公共權(quán)力向納稅人強(qiáng)制征收稅款,對社會剩余產(chǎn)品進(jìn)行分配。起初,征稅對象僅局限在一國的國民范圍之內(nèi)。隨著生產(chǎn)力的不斷進(jìn)步,商品交換的日益頻繁,資本主義經(jīng)濟(jì)開始萌芽。資本主義國家對外進(jìn)行資本輸出,促進(jìn)了國際投資與貿(mào)易的不斷發(fā)展�？鐕境蔀榻�(jīng)濟(jì)全球化中的主要力量,促進(jìn)了資金、技術(shù)、人才等在世界范圍內(nèi)的循環(huán)流動。這種支出與收入的國際化使國際稅收成為了必然。各國為了保護(hù)自己的財(cái)政收入與經(jīng)濟(jì)利益,紛紛向跨國投資者從本國境內(nèi)取得的收入課征稅款。但各國稅收制度存在差異,管轄領(lǐng)域也有所不同,易導(dǎo)致重復(fù)征稅的問題,即跨國納稅人基于同一筆所得繳納兩次稅款。為了促進(jìn)相互間的經(jīng)濟(jì)往來,明確各自的稅收管轄權(quán)和跨國納稅人取得所得的應(yīng)繳稅款,各國開始簽訂國際稅收協(xié)定�；诖龠M(jìn)締約國間人才、貨幣以及商品的流動等考慮,締約國雙方在協(xié)定中往往給予對方一些稅收優(yōu)惠待遇,通常規(guī)定了比國內(nèi)法較低的稅率。有些非締約國跨國納稅人為了謀求經(jīng)濟(jì)利益,偽裝成締約國一國居民,套取稅收協(xié)定的優(yōu)惠待遇,影響了所得來源國的稅收收入,造成了國際稅收協(xié)定的濫用。為防止濫用行為及增強(qiáng)稅收協(xié)定的統(tǒng)一性,OECD與聯(lián)合國分別在各自范本的有關(guān)條款中援引了“受益所有人”制度。這些范本及注釋成為了日后各國簽訂稅收協(xié)定的參考,卻從未對“受益所有人”做出明確的定義,也未能夠減少適用中產(chǎn)生的分歧與困難。不僅學(xué)術(shù)界對此爭論不休,各國的認(rèn)定也不盡相同,甚至是同一國家不同法院或法官對同一個案件中受益所有人的認(rèn)定也各有不同。隨著改革開放的不斷深入,跨國經(jīng)濟(jì)成分比重的不斷提高,要求認(rèn)定稅收協(xié)定受益所有人的申請也不斷增多,但稅務(wù)機(jī)關(guān)因缺少認(rèn)定依據(jù)而左右為難。從2009年起,國家稅務(wù)總局先后頒布了601號文、2012年30號公告、2014年24號公告等規(guī)范性文件,明確了我國對受益所有人身份的認(rèn)定,在實(shí)踐中對于“受益所有人”的認(rèn)定起到了巨大的指導(dǎo)作用。本文分為導(dǎo)言、正文、結(jié)語三個部分,其中正文為四章。第一章:“受益所有人”制度概述。首先介紹了“受益所有人”制度的提出及發(fā)展,“受益所有人”制度最早產(chǎn)生于英美法系的信托制度,其后跨越部門法的發(fā)展進(jìn)入國際國際法領(lǐng)域,OECD將其引入?yún)f(xié)定范本后逐漸為各國使用,用以防止不符合身份的第三國居民對稅收協(xié)定的濫用;其次探討了“受益所有人”概念的界定,由于OECD在一開始引入“受益所有人”制度時沒有對其作出明確定義,其后在歷次修訂范本中也未能達(dá)成一致意見,各國在適用該規(guī)則是都依據(jù)其本國國內(nèi)稅法的規(guī)定。學(xué)界對于“受益所有人”概念的界定也是各有千秋。我國在稅務(wù)機(jī)關(guān)發(fā)布的規(guī)范性文件中對于“受益所有人”概念也作出了一般界定,并從反面列舉了不宜認(rèn)定為“受益所有人”的情形。最后闡述了“受益所有人”制度設(shè)立的意義:一來可以維護(hù)所得來源國的稅收利益,二來可以維護(hù)良好的國際競爭環(huán)境。第二章:國外有關(guān)“受益所有人”制度的實(shí)踐。分別選取英美法系和大陸法系國家對于“受益所有人”的經(jīng)典稅務(wù)司法實(shí)踐案例,通過具體的案例了解各國對于“受益所有人”身份認(rèn)定的標(biāo)準(zhǔn)。英美法系國家往往采用“實(shí)質(zhì)優(yōu)于形式”的原則對“受益所有人”身份進(jìn)行解讀。在印都國際金融公司案中,英國法院第一次對“受益所有人”概念作出解釋,強(qiáng)調(diào)經(jīng)濟(jì)實(shí)質(zhì)分析法,不局限于法律或技術(shù)層面,應(yīng)當(dāng)刺破偽裝的面紗,杜絕對稅收協(xié)定的濫用;在美國的稅務(wù)司法實(shí)踐中,也貫徹了“實(shí)質(zhì)高于形式的”原則進(jìn)行身份認(rèn)定;而大陸法系國家通常基于法律層面進(jìn)行理解,嚴(yán)格遵循字面解釋。第三章:我國有關(guān)“受益所有人”制度規(guī)定的內(nèi)容及稅務(wù)實(shí)踐。在國稅函【2009】601號文中,我國首次對于“受益所有人”作出了規(guī)定,并且列舉了不利于“受益所有人身份”認(rèn)定的七項(xiàng)因素;2012年30號公告指出:明確依據(jù)“實(shí)質(zhì)重于形式”認(rèn)定“受益所有人”身份,設(shè)定了“安全港規(guī)則”,并且強(qiáng)調(diào)“不能僅因某項(xiàng)不利因素的存在而做出否定或肯定的認(rèn)定”;2014年30號公告,專門就委托投資情況下“受益所有人”身份的認(rèn)定問題作出了規(guī)定,對認(rèn)定程序作了較為細(xì)致的規(guī)定。介紹了2012年青島國稅否定某合資企業(yè)“受益所有人”身份認(rèn)定,成功追回六千多萬稅款的案例。第四章:我國“受益所有人”制度存在的問題及解決措施。針對我國關(guān)于“受益所有人”制度的相關(guān)規(guī)定及稅務(wù)實(shí)踐,指出我國“受益所有人”制度尚存在規(guī)范文件法律層級低、規(guī)定模糊、稅務(wù)機(jī)關(guān)自身不足等問題,提出應(yīng)當(dāng)提高法律層級、明確規(guī)定、完善稅務(wù)機(jī)關(guān)自身問題的建議。
[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.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D922.22
本文編號：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.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D922.22
【參考文獻(xiàn)】
相關(guān)期刊論文 前1條
1 郎平;;“受益所有人”制度在我國的新發(fā)展[J];法制博覽(中旬刊);2013年07期
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