国际税收协定与国内税法关系探讨——以受控外国公司税制为视角

An Analysis of the Relation between Tax Treaties and the CFC Regime

长期以来,国际税收协定与国内反避税法的关系问题一直存在争议。一般认为,税收协定优于国内税法;但是,为了防止纳税人滥用税收协定进行避税,该原则也不应绝对化。受控外国公司税制作为一种重要的反避税措施,也产生了与税收协定的兼容性问题。从欧盟国家的实践来看,观点并不一致。但2003年OECD范本注释明确规定,两者是兼容的。由于我国在新的企业所得税中规定了该项税制,因此,解决两者的兼容性也是必须面对的问题。同时,在《宪法》没有对条约在国内法中地位进行规定之前,我国《企业所得税法》第58条应得到完善。

For a long time, the relationship between international tax treaties and anti-tax avoidance has been controversial. It is generally believed that the tax treaties prevail over the domestic law. However, in order to prevent taxpayers from treaty shopping, the principle should not be absolute. The Controlled Foreign Company regime is viewed as an important anti -avoidance measure, but whether it is compatibility with tax treaties or not is a important issue. From the practice of the European Union, the view is not unanimous. But the 2003 OECD Model Commentaries emphasize that they are compatible. At present, according to the Enterprise Income Tax Law of PRC, China competence authority has adopted the CFC regime to regulate the deferral or evasion of taxation. The compatibility of them should be faced with the problem. However, the article 58 of the Enterprise Income Tax Law of PRC should be perfect only if the treaty is incorporated into the Constitution in domestic law system.