非居民企业反避税政策存在问题及政府审计发挥作用的路径研究——以“儿童投资主基金税案”为例

Analysis of Problems with Tax Policies on Non-resident Enterprises' Indirect Share Transfer and the Path Government Auditing Should Take——Taking the Children's investment master fund tax case as an example

随着我国吸收外资持续增长,由此带来的非居民企业间避税问题日益严重。本文选取典型非居民企业间接转让股权税案"儿童投资主基金税案"为例,针对目前我国非居民企业间接转让股权反避税政策与实践中,存在合理商业目的判定主要注重客观因素、实质重于形式原则未被列入税法、司法机关约束能力有待提高、内部审计和社会审计独立性弱化提高了企业的税收激进程度等问题,重点关注税务机关和法院如何进行合理商业目的测试,并尝试通过对国家税务总局2015年第7号公告中合理商业目的判定要件进行主客观分类,分析判定要件设置的合理性。本文认为,政府审计在促进完善我国非居民企业间接转让股权反避税政策的作用路径主要有推动执法机关实事求是地判定是否是"合理商业目的",促进一般反避税条款的不断完善,推动税务机关和司法机关不断提升反避税能力,不断加强政府审计强化反避税部门联合监管。

As China＇s absorption of foreign investment continues to grow, the problem of tax avoidance among non-resident enterprises has becoming increasingly serious. Taking ＂the Children＇s Investment Master Fund Tax Case＂, a typical tax case in this respect, as an example, this paper analyses the policies and practices of China＇s non-resident enterprises＇ indirect share transfers, and identified existing problems including that the determination of bona fide commercial purpose mainly focus on objective factors, that the substance-over-form principle is not included in the tax law, that the ability of the judicial organs in restraining tax avoidance is yet to be improved, and that the weakened independence of internal auditing and CPA auditing raises the taxation agressiveness of enterprises. This paper focuses on how the tax authorities and the courts determine bona fide commercial purposes, and tries to analyze the rationality of the setting of the judgment elements in Bulletin No. 7 of 2015 of the State Administration of Taxation by classifying these judgment elements as subjective or objective. The paper holds that, to prevent tax avoidance of non-resident enterprises＇ indirect share transfers, government auditors should push the law enforcement authorities to determine a bona fide commercial purpose as it is, promote the continuous improvement of general anti-tax avoidance clauses, improve the tax and judicial authorities＇ capabilities to anti-tax avoidance and continuously strengthen joint supervision by government auditors and anti-tax avoidance agencies.