实质课税原则的路径重塑

The Remodeling Path of Substantive Taxation Principle

反避税研究的焦点不应局限于规则与技术运用的论争,更应追问规则与技术背后的税法原理。在中国的语境下塑造实质课税原则在反避税工作中的可行性,应借助大陆法系积累税法的法理与共识,增强实质课税的司法维度,引用英美法系中实质课税的判断标准,并将英美法系中反避税的规则尽量限制在司法领域,以求得在宽泛的规则与适当的约束之间的制衡点:既能将游离在税法规制之外的经济行为纳入税法之治,又不至于对纳税人正常的商业活动造成阻碍。

The focus of anti-avoidance research should not be limited to the use of rules and techniques,but also the principles of tax law behind the rules and techniques. In the context of China to shape the principle of substantive taxation in the anti-tax avoidance,the legal accumulation and consensus of the tax law in the continental law system should be used to enhance the the judicial dimension of substantive taxation,the standard of the substantive taxation in the common law system should be introduced to limit the rules of anti tax avoidance as far as possible in the judicial field to get the balance between the broad rules and the appropriate constraints. It can not only bring the economic behavior outside the tax regulation into the tax law,but also not hinder the normal business activities of taxpayers.