税收筹划权的理论建构及其实现路径

The Theoretical Construction of Tax Planning Right and Its Realization Path

税收筹划即纳税人合理安排经营活动以少缴税款,学理标准和现实背景俱支持其上升为一项纳税人权利。通常习惯于从避税出发反向界定税收筹划的范围,但税收利益、立法目的和商业实质三项标准皆表意模糊,且该进路亦存在逻辑罅漏,易放大或限缩税收筹划权的应有意涵。应改采列举定义法,分析税收筹划的典型情形,藉此可明确税收筹划权的核心是纳税人放弃实施税负较重之交易安排、使行为满足税收优惠构成要件的自由,而当纳税人在多种经济实质相同的交易安排中择税负较轻者为之,却受到反避税调整时,也应享受公正待遇。实体和程序税法应充实或更新相关规则,将税收筹划权确立为实定法上的纳税人权利,达致“以权利制约权力”的目标。

Tax planning means that taxpayers reasonably arrange business activities to underpay taxes,and both academic standards and practical background support their rise to a taxpayer s right.It is usually used to reversely define the scope of tax planning from the perspective of tax avoidance,but the three standards of tax benefit,legislative purpose and commercial substance are all ambiguous,and there are logical flaws in this approach.It is easy to amplify or restrict the tax decentralization.Instead,the enumeration definition method should be adopted to analyze the typical situation of tax planning,and it can be clarified that the core of the tax planning right is that taxpayers give up the freedom to implement tax-heavy transaction arrangements and make the behavior satisfy the requirements of tax preference.Taxpayers should also enjoy fair treatment when they choose the one with the lightest tax burden in a variety of economically identical transaction arrangements but are subject to anti-avoidance adjustments.The substantive and procedural tax laws should enrich or update the relevant rules,establish the tax planning power as the taxpayer s right under the real law,and achieve the goal of“restricting power with rights”.