论外籍高管双重雇佣的个税征收

The Levy of Individual Income Tax on the Double Employment of Foreign Executives

在劳动者跨国流动日趋频繁的大背景下,公平合理地对具有外国国籍的非居民征税,对于营造友好型经商环境以吸引外资意义重大。然而,当前双边税收协定与中国国内税制缺乏相应协调,国内个人所得税相关法律又缺乏逻辑自洽,因此立法和执法层面存在以下问题:其一,国内法规范性文件关于非居民工资、薪金所得来源地认定规则在适用中存在歧义,并且与《个人所得税法实施条例》的规定相冲突,导致税收争议和诉讼;其二,非独立劳务所得来源地认定规则和认定标准不统一,下位法违反上位法,违反税收法定原则;其三,应纳税额计算方式与来源地征税权相抵触,税务机关和司法机关在解决税收争议时忽视税收协定的适用。为促进非居民高素质人才流入,并为跨国纳税人创造稳定可预期的税收环境,应当统一来源地认定标准,完善个人所得税的计征方式,以经济关联因素作为征税权的基础,进一步协调国际税收协定和国内法的内容,消除法律法规与规范性文件的冲突。

With increasingly frequent cross-border movement of laborsthe fair taxation on foreign employees is of great significance to creating a friendly business environment and attracting foreign investment.However,the current bilateral tax treaty lacks coordination with China’s domestic tax system,and there is no logic self-consistency in the domestic laws relating to personal income tax.Therefore,there are the following problems in the legislative and law enforcement aspects:firstly,the domestic law normative documents on non-resident wages and the rules for determining the source of salary income are ambiguous in the application,and conflict with the provisions of the Individual Income Tax Regulations,leading to tax disputes and litigation;secondly,the rules for determining the source of non-independent labor services and the criteria for identification are not uniform,and the inconsistency between a inferior law and a superior law consititutes a violation of the statutory principle of taxation;thirdly,the calculation of the taxable amount is in conflict with the taxation right of the source.The tax authorities and the judicial authorities ignore the application of the tax treaty when resolving tax disputes.In order to promote the inflow of non-resident high-quality talents and create a stable and predictable tax environment for transnational taxpayers,the source of land identification standards should be unified,the method of collecting individual income tax improved,and economic correlation factors used as the basis for taxation rights to further coordinate.Moreover,the content of international tax treaties and those of domestic laws should be further coordinate,so as to eliminate conflicts between laws and regulations and normative documents.