税收优惠的理论解析及其法治化路径

Theoretical Analysis of Tax Preference and Its Path of Rule of Law

税收优惠概念的界定并未取得学界共识。从词源和实践的角度出发,税收优惠的构成要件应当以征税对象具有可税性为前提,其本质为低于标准税收的税负待遇。税收优惠的正当性基础在于税法价值目标的二元性及相应实现工具的二元性,同时它也是对社会发展非均衡性的现实回应。当前我国税收优惠制度面临体系形式混乱、实质评估缺位的困境,应当通过落实税收法定、建立税式支出制度以实现税收优惠的法治化治理,贯彻公平竞争审查与设立税务法院是其中必不可少的环节。

There has not been a consensus about the precise concept of tax preference. From the perspective of etymology and practice,the key components of concept of tax preference in tax law is on the premise of taxability theory and with the essence of being taxed less than normal taxation. The legitimacy of tax preference is that tax law is made up of dual structures of values and methods and it has to respond to the realistic demands. At present,tax preference institutions are confronted with the problems that the preferences system is in chaos and lack of substance evaluation. It ought to put the statutory taxation in place and set up the tax expenditure institution to make the tax preferences ruled by law,for which it is necessary to implement fair competition review and set up tax court.