限售股转让税收政策的法律评析

The Application of Tax Law on Transfer of Sale-Restrictive Shares from the Perspective of Transaction Characterization

限售股税收问题,理论界或实务界仍存在较大争议。在面对限售股股东对流通股股东支付的对价是否为应税所得、对限售股转让是否征收营业税、企业代个人持有限售股转让所得转付给个人时所得税课税主体的问题以及限售股股权收益权信托的性质这些疑难问题时,应该秉承实质课税的原则,借助交易定性分析工具和实质课税原理,对关乎税收主体、税收客体的有无以及税收客体定性等税法评价做出合乎法理的判断。

In different phases of the reform of share rights splitting, there are many tax is-sues concerning sale-restrictive shares still under heated debating in the theory and practice circle. On judging whether the consideration belongs to taxable income or not, whether one should pay business tax on transferring sale-restrictive shares, who is the taxpayer when transferring income acquired by transferring shares from corporate shareholders on behalf of the individuals and what is the nature of the trust of the right to equity interests, the tax authorities should insist on the principle of substantial justice , using transaction character- ization and the principle of substantial justice to analyze these problems related to ascertain- ment of the taxpayer, existence and true nature of tax object so as to realize fairness and justice in the application of tax law.