不可承受之重:税收核定的反避税功能之反思 以《税收征管法》第35条第(6)项为起点的探讨

Doubt on Tax Estimate acting as the Anti-avoidance Measure Discussing on Article 35(6) of Law of Tax Collecting and Administration

《税收征管法》第35条第(6)项允许税务机关对纳税人申报偏低而无正当理由的计税依据重新进行核定。这一规定往往被认为是税收核定具有反避税功能的重要体现。然而,本源意义上的税收核定是在纳税人违反协力义务的情况下由税务机关以一定的经验法则替代未被提供的课税资料而估算税基的金额的特殊税基确认方式。一项可能构成避税安排的交易已在一般税收确定程序中公开、充分地进行了申报,是不满足税收核定的适用条件的。税收核定作为税基量化事实的表见证明方式,实际上难以实现对经济实质予以认定的反避税目标。更重要的是,以税收核定重新对税基进行量化,仍缺少相应的程序性规制,极易造成随意调增应纳税额的结果。对纳税人申报偏低的计税依据进行核定,既有违税收核定的制度初衷,也无法实现以经济实质为基础的"据实课征"目标,不足以将其作为反避税的工具予以规定。

It is allowed for the tax authority to estimate the taxable amount if the tax base is obviously lower without the justifiable reason according to Article 35 （6） of Law of Tax Collection and Administra- tion. It is believed that it is the evidence that the tax estimating works as one of the anti--avoidance measures. However, the tax estimating is such a mechanic under which a specified empirical rule may be used to take the place of the tax information which is absent for the taxpayer doesn＇t submit to the tax authority who should do so under the tax law. Normally the taxpayer has submitted the documentations about a transaction which is on the anti--avoidance investigation in the general tax collection procedure. There are not enough evidences, particularly direct evidences, to determine the real tax base when the le- gal form is abused in almost cases. However, it is not raised by the breach of the documentary obligation of the taxpayer. Therefore the taxable event cannot be determined on the approach of tax estimating. As a proven approach of the prima facie, it is doubted that it could be adopted to find out the economic sub- stance. Under the tax estimating approach, the tax authority just can ＂estimate＂ roughly the amount of tax base, which is not the real one in most cases. As a result, the principle of ability--to--pay for tax purpose, which governs the anti--avoidance mechanism as the general principle, should not work when the tax estimating is adopted. Moreover, the tax base may be increased on discretion since there is no pro- cedural rules governing the tax estimating until now. Therefore, it is a mistake to adopt the tax estima- ting as an anti--avoidance measure. It is not a method to determine the real tax base of an avoidance ar- rangement unless the taxpayer doesn＇t submit the documentations according to the tax law.