个人所得税反避税规则的制度逻辑及其适用

The System Logic and Application of Anti-avoidance Rules Of Personal Income Tax

个税规避行为种类多元,难以提炼,且与企业避税相互交织,与节税、逃税之间的界限模糊,长期以来不受立法规制。税务机关运用经济观察法、类型化观察法调整个税规避行为,存在正当性方面的瑕疵。新个人所得税法引入两项特别反避税规则和一项一般反避税规则,但基本照搬《企业所得税法》规定,针对性有限。修法引入反避税规则后,应妥善处理其与下位规范的分工、与《企业所得税法》及《税收征收管理法》的协同。税务机关运用反避税规则时应谦抑克制,坚持主客观相统一并适当强化对主观因素的观照,进而在避税行为的认定标准、认定程序、举证责任与证明标准、规则内部关系四个层面,准确理解和适用法律,弥合制度与实践之间的罅隙。

Individual tax evasion,with multiple types,is difficult to define.For a long time,it was not regulated by legislation as it is intertwined with corporate tax avoidance,and its boundary with tax saving and tax evasion is blurred.The tax authorities’adjustment of individual tax evasion behavior by using the economic observation method and typed observation method has legitimate defects.The new personal income tax law introduces two special anti-tax avoidance rules and one general anti-tax avoidance rule,but it basically copies the provisions of the Enterprise Income Tax Law,with limited pertinence.After the introduction of anti-tax avoidance rules,we should properly deal with the division of labor between the new law and the lower norms,as well as the coordination with the Enterprise Income Tax Law and the Law on the Administration of Tax Collection.When making use of anti-avoidance rules,tax authorities need to be modest with self-control,adhere to the subjective and objective unification,and appropriately reinforce the consideration of subjective factors so as to understand and apply the laws accurately and heal the rift between system and practice in terms of four dimensions,namely the standard of tax avoidance,decision procedures,the burden of proof to prove standard,and internal relationship of rules.