集团内部跨境重组特殊性税务处理的适用规则

Improvement of the Applicable Rules for Special Tax Treatment of Group Internal Cross-border Reorganizations

在企业重组特殊性税务处理规定的客观要件不完善的情况下,合理商业目的这一主观要件曾发挥了积极作用。但由于该主观要件缺乏明确的界定,税务机关在适用时具有很大的自由裁量权,在实践中往往借此否定企业重组的免税待遇,并因此经常与纳税人发生争议,尤其是在集团内部跨境重组领域。为实现税收公平和中性以及增加税法的确定性,对于跨境重组特殊性税务处理,需要进一步界定主观要件的含义并减少其在执法中的大量适用,通过制定、修改特殊客观要件的配套条款来完善适用规则。

In the case that the provisions on the objective element of the special tax treatment for the enterprise reorganizations are imperfect, the subjective element of reasonable commercial purposes had ever played a positive role. However, due to the lack of a clear definition of this subjective element, the tax authorities who have a large amount of discretion in the applications, often thereby deny the tax-free treatment in the enterprise reorganizations, and dispute with the taxpayers, especially in the field of group internal cross-border reorganizations. In order to achieve the fairness and neutrality of the tax and increase the certainty of the tax law, with regard to the special tax treatment for the enterprise reorganizations, it is required to reduce the amount of the subjective element＇s application in the law enforcement, and to improve the applicable rules through the formulation and revision of the special objective element.