法治视野下清理规范税收优惠政策研究

On Cleaning up and Regulating the Preferential Tax Policy from the Perspective of the Rule of Law

改革开放以来,我国一直面临税收优惠政策尤其是区域优惠政策内容过滥、形式过多、种类过杂、"政出多门"等混乱局面。从法治原则的角度看,量能课税、合比例性、税收法定等与党的十八届三中全会决定要求遵循的"统一税制、公平税负、促进公平竞争的原则"内在契合,可以藉此撬动税收优惠的清理规范。量能课税作为税收优惠的重要参考,不能肆意偏离。量能课税之下,税收优惠还需获得正当性和合法性论证,而这离不开比例原则和税收法定主义的作用。只有在此基础上,才能构建一个兼具实质合理性和形式合法性的税收优惠法律体系。

Since China＇ s reform and opening up, tax incentives, especially regional tax incentives, have many problems. It is timely for the central government making the decision of cleaning up and regulating tax incentives. But how to clean up and regulate tax incentives becomes a puzzle of the rule of law that should be promptly responded. From the viewpoint of rule of law, taxation on the ability, principle of proportionality, and doctrine of tax legalism have intrinsic conjunction with the decision by the ruling party. They can be used as tools and criterion to clean up and regulate tax incentives. Taxation on the ability is regarded as the platform for tax incentives, which should not be arbitrarily deviated. Besides, tax incentives still needs to gain its justification and legitimacy, which is dependent on the function of principle of proportionality and doctrine of tax legalism. Only on this basis can we build a tax incentives legal system with substantial rationality and formal legitimacy.