双边税收协定与CFC税制关系探讨——兼谈《中华人民共和国企业所得税法》第58条

An Analysis of the Relation between Bilateral Tax Treaty and the CFC Regime

长期以来,双边税收协定与CFC税制关系问题存在争议。一般认为,受控外国公司税制作为一种重要的反避税措施,它与双边税收协定是兼容的。但是,从一些欧盟国家的实践来看,观点并非一致。由于《中华人民共和国企业所得税法》中规定了该项税制,因此,解决两者的兼容性也是将要面临的问题。在我国《宪法》没有对条约在国内法中地位进行规定之前,《中华人民共和国企业所得税法》第58条应予以完善。

For a long time, the relationship between bilateral tax treaties and the Controlled Foreign Company regime has been controversial. It is generally believed that the Controlled Foreign Company regime is an important anti-avoidance measure. However, whether it is compatibility with tax treaties or not is an important issue. The 2003 OECD Model Commentaries emphasize that they are compatible. At the same time, from the practice of the European Union, the view is not unanimous. At present, pie＇ s Repulic of China, China competence authority has according to the Enterprise Income Tax Law of the Peoadopted the Controlled Foreign Company regime to regulate the deferral or evasion of taxation. The compatibility of them should be faced with the problem. However, the article 58 should be perfect before the treaty is incorporated into the Constitution in domestic law system.