税务和解适用标的兜底条款的认可效力困境及其消解

Difficulties in Recognizing the Effectiveness of the Miscellaneous Provision of Tax Settlement Standard and Its Resolution

如果规则是出于法律确信而被人们从内心中自愿遵守,那么它就具有认可效力。规则具有认可效力的核心要素包含三项:前提是内容意思明确;普遍认为内容具有正当性;适用该规则不会潜藏法律风险。通过考察典型案例可知,税务和解适用标的兜底条款的实然效力低下,其直接原因就在于该条款在这三项因素中都存有缺憾,以致条款陷入认可效力困境。困境消解的核心难点是证成“存在其他合理性问题”这一内容的正当性。从即期看,建议完善立法以控制运用兜底条款的执法风险,并积极推进税务和解案例指导制度;从长远看,兜底条款认可效力困境的消解,还需在公平价值贯彻于税收立法的进程中得到推进。

If a rule is voluntarily followed from the heart by legal conviction,then it has a recognition effect.If a rule has a recognition effect,it should have three core elements:the premise is that the content has a clear meaning;the content is generally considered to be justified;and the application of the rule will have no potential of illegal risk.By examining typical cases,it can be seen that the miscellaneous provision of tax settlement standard is less effective due to the defects of three core elements in this provision,which leads to the predicament of recognition effectiveness.The core of resolving this dilemma is to justify the content that“there are other reasonable problems”.In a short term,it is recommended to improve legislation to control the risk of the enforcement of the miscellaneous provision and actively promote the tax reconciliation case guidance system.In a long run,the fair value should be implemented in tax legislation in order to resolve the dilemma of recognition effectiveness of the miscellaneous provision.