信托所得课税归属认定的税法困境与应对之策

The Dilemma and Countermeasures of Tax Law in the Cognizance of Taxation of Trust Income

信托所得所有权的"分散"性致使所得课税归属规则--"私法所有权归属"适用受阻。英美国家创设的"所有权认定"理论,即信托实体理论与信托导管理论,在脱离英美法系背景之后运用于我国信托所得课税归属仍有不适与困境。面对上述规则困境与现实难题,与信托导管理论颇有渊源的实质课税原则可以一解燃眉之急,其内涵的经济实质可在立法中作为信托所得课税归属规则,且依据此归属规则确认信托所得受益人为纳税主体。至于受益人作为纳税人在履行纳税义务时存在的征收难题,信托实体理论中受托人代为缴纳税款的设计同样令人深受启发:在所得税的扣缴义务人制度下,受托人可为信托所得的代缴义务人。

The decentralized ownership of trust income hinders the application of private law ownership, which is the tax ownership rule of income.The theory of "ownership identification" created by Anglo-American countries includes the theory of trust entity and the theory of trust catheter, which is still uncomfortable and difficult to apply to the tax ownership of trust income in China after separating from the background of Anglo-American law system.In the face of the predicament and practical problems of the above rules, the principle of substantive taxation, which is quite related to the theory of trust conduit, can solve the urgent problems. The economic essence of its connotation can be regarded as the tax ownership rule of trust income in legislation, and according to this ownership rule, the beneficiary of trust income can be confirmed as the tax subject.As for the tax revenue collection problems of beneficiaries as taxpayers in fulfilling their tax obligations, the design of trustees to pay taxes on their behalf in the theory of trust entity is also enlightening: under the withholding agent system of income tax, the trustee can be the agent of trust income.