避税行为可罚性之探究

Research on the Punishability of Tax Avoidance

避税制裁难以形成对潜在避税者的真正威慑和阻吓,以罚款补偿因避税产生的税收流失反而造成新的不公平的结果。与逃税行为损害的是已发生的征税权不同,避税行为损害的是国家依据税法规定和商业惯例取得未来特定金额的税收收入的期待状态,其社会危害性相对较弱。避税行为违法性论断所依据的价值评判标准,即以交易的法律形式确定纳税义务不符合应税性和税收负担能力的判断,无法为具体纳税义务的确定提供客观的依据。仅因不符合税收立法宗旨或目的,难以将符合税法字面含义的避税行为认定为违法。交易存在法律形式与经济实质的脱节,是法律评价的结果。要求纳税人在纳税申报时主动如实揭示交易的经济实质、与税务机关就税法条文的适用持完全一致的法律见解,不具有期待可能性。以法律形式的选择获取立法者未期待的税收利益,未必建立在税法的敌对意识之上。从规范价值论而言,避税行为的违法性和可非难性非常薄弱。避税处罚并非基于避税行为具有可罚性的价值判断,不过是在特定环境下基于特定政策目的的选择而已。

According to the principle of culpability,a conduct can be penalized only if it is illegal and blameworthy.In a tax avoidance arrangement,the transaction is constructed in a legal form which is true,effective and fully disclosed so that it can circumvents the tax liability that a taxpayer would otherwise bear.Consequently,it is the government's anticipation for the payable taxes in the future arising from the tax law and commercial customs that is damaged by such an arrangement.Therefore,the social harmfulness of tax avoidance is weaker than that of tax evasion,which directly harms the existing taxing right of the state.It is argued that tax avoidance is illegal because the determination of the tax liability based on the legal form cannot present the real taxability and the ability to pay of the taxation.However,it cannot be treated as illegal just because it is in conflict with the underlying value judgment standard of tax rules.Moreover,it is necessary to make a legal valuation to determine whether the legal form of a transaction is in conflict with its economic substance.A taxpayer cannot be expected to disclose the economic substance of a transaction on his own initiative and hold the legal opinion similar to that of the tax authority in his tax return.It is impossible for the taxpayers to determine the scope of application of a particular tax rule and there is no reason to require them to grasp and comply with the content of and the legislative intent behind a tax rule.It may be with an honest misunderstanding of the fact or the law that a taxpayer participates in a noneconomic substance transaction that produces the unintended tax benefit.Therefore,it is not a wise choice to introduce the separate tax penalty into law as a tool to attack tax avoidances.