税收事先裁定的理论基础和制度考量

The Theoretical Basis and System Design of Tax Advance Rulings in China

以纳税服务面貌出现的税收事先裁定,其本质是在税法适用与解释中发现并填补税法规则漏洞,并对未来预期交易做出税收构成要件认定。该制度在中国确立,必须基于两个理论基础:一是税法行政解释权不得放弃也不得独享,在税收法治的语境之下,服从税法解释权共享原理;二是为预防税法解释权泛滥专断,事先裁定制度必须与开放税收司法同步推进,并内设税务机关总法律顾问制度,以管控税法行政解释质效,使税收法治名至实归。

Tax advance rulings are embodied through tax services, whose essence is to seek for and close the loopholes of tax law and rules in the application and interpretation of tax laws, as well as to identify the tax constituent elements for prospective transactions. There are two theoretical bases to meet for the scheme to be established in China： firstly, the interpretation right of tax administration should not be abandoned or enjoyed alone, and be subject to the sharing principle of tax law interpretation rights under the context of tax constitutionality;and secondly, in order to prevent the abuse of tax law interpretation rights, the tax advance rulings system and openness of tax legislation should be promoted simultaneously and also the general legal consultant system should be set up for tax authorities so as to control the quality and effectiveness of tax law administration interpretations as well as the reputation of taxation constitutionality are true to form.