美国对跨国并购融资中滥用税收协定的管制措施及评析

Reviewing U.S.Controlling Measures against Treaty Shopping in the Financing Relating to Transnational Corporate Mergers and Acquisitions

针对跨国并购融资中滥用税收协定行为,在美国,可适用国内法层面的反导管原则与国际法层面的管制措施——双边税收协定中透视法、渠道法条款来管制。国内法层面的反导管原则从规范具体交易的角度,而国际法层面的管制措施则从规范可获得税收协定利益的适格主体角度,两者形成一股强大的合力,可对跨国并购中导管融资安排施加有效管制。中国目前尚未在国内税法中制定反导管规则,美国立法例值得中国借鉴。

Aiming at the conducts of treaty shopping in the financing relating to translational corporate mergers and acquisitions, in U.S., the anti-conduit rules may be used on domestic law level and measures of management and control may be used on international law level, namely, the look-through approach and the channel approach in bilateral tax treaty for management and control are adopted there. The anti-conduit rules on domestic law level start from the angel of standardizing concrete dealing activities, while the measures of management and control on international law level start from the angle of the main body who are eligible for the tax benefits under international taxation conventions. These two-level measures are so cooperative that they can effectively prevent the treaty shopping in the financing relating to transnational corporate mergers and acquisitions. However, China hasn＇t adopted the anti-conduit rules in its domestic tax law yet. The anti-conduit rules in U.S. federal tax law deserve to be used for reference by China.