“税收协定优于国内税法适用”不可绝对化

Tax Treaties Are Not Absolutely Prior to Domestic Tax Laws

《中华人民共和国外商投资企业和外国企业所得税法》和《中华人民共和国税收征收管理法》规定,在国内税法与税收协定发生冲突的情况下,优先适用税收协定。①但是这一规定过于绝对化,在大多数情况下,我们应该善意履行国际义务,遵守税收协定的规定,但是,如果国内税法的规定能够维护本国税收利益,打击国际逃避税,或者国内税法给跨国纳税人带来的利益优于税收协定给跨国纳税人带来的利益,则国内税法可以优先于税收协定适用。

According to Income Tax Law of the People rs Republic of China for Enterprises with Foreign Investment and Foreign Enterprises and Law of the Peoplers Republic of China Concerning the Administration of Tax Collection, when domestic tax laws conflict with tax treaties, tax treaties shall have the priority. This article argues that the application of this rule should not be over-emphasized. In most of the cases, we should fulfill our international obligations in good faith and comply with tax treaties. However, if domestic tax laws can defend national tax benefits, crack down against international tax evasion and tax avoidance, or if the transnational taxpayers can benefit more from domestic tax laws than from tax treaties, domestic tax laws may take priority over tax treaties.