“受益所有人”在税收协定及我国税法中的应用与完善

Application and Improvement of Beneficial Owner in Tax Treaty and Domestic Tax Law

"受益所有人"概念的价值在于对享受税收协定优惠的主体起到识别及限缩作用,是反税收协定滥用的一项重要措施。OECD范本及联合国范本都引入了此概念,但皆未对其作出确切解释。目前多数国际税收协定为防范协定滥用规定了"受益所有人"条款。我国也在601号文中对"受益所有人"进行界定并通过30号公告进一步明确,但囿于规范性文件的性质及条文的操作性欠缺,我国税法领域关于"受益所有人"的条款还需要从提升法律层级、增加否定式条款等方面进行完善。

The value of beneficial owner is that it could identify and narrowed the scope of subject who could enjoy treaty benefits and is one of the important measures to prevent treaty-shopping. Both OECD Model and UN Model have introduced this term, but neither of them provides a clear definition for it. To prevent treaty-shopping, most tax treaties have Beneficial Owner clause. Consist with the need of tax practice, China has defined the term of Beneficial Owner in NO.601 Normative Documents and then issued NO.30 Announcement to further clear it. However, they are just normative documents and some lack of interoperability, therefore we should perfect the Beneficial Owner clause from aspects of enhancing legal hierarchy and introducing negative clauses in tax law area.