乡村振兴视野下集体经营性建设用地入市课征土地增值税——法理逻辑与制度构造

Levying Land Value-added Tax on the Market Entry of Collectively-owned Commercial Construction Land from the Perspective of Rural Revitalization——Jurisprudence Logic and Institutional Structure

集体经营性建设用地入市之于乡村振兴可谓关键。为保障入市,调节金成为重要工具。考察各调节金征收使用管理办法,可以发现调节金蕴含税收或准税秉性,并内聚特定目的税功能。相较于调节金,以土地增值税规制集体经营性建设用地入市,具有显著的本体功能和法治实施优势。《土地增值税法(征求意见稿)》顺势扩大范围从而涵盖集体经营性建设用地入市,显示了立法者以土地增值税替代调节金的制度期待。但拟征方案深陷如下制度困局:目的条款缺位,致使课税导向不清;客体规则封闭,导致回应相关税种法不足;计量规则失当,背离土地增值税立法机理;等等。凡此皆有违税收公平,背离土地增值税机理与法理,偏离土地制度改革方向。制定集体经营性建设用地入市土地增值税制,应恪守初次流转与再次流转的二元税制基准,保留目的条款的形式脉络并实质改造既有内容。在此基础上,应通过内部拓展与外部协调两条路径完善客体规则,借助计税依据和税率重构兼容法定与授权的计量规则,并构造税款专用制度。

The market entry of collectively-owned commercial construction land is the key to rural revitalization.In order to ensure collectively-owned commercial construction land into the market,levy adjustment funds become an important tool.Observing different measures for the administration of the collection and use of adjustment funds,it can been found that adjustment funds contain the nature of tax or quasi-tax,and that adjustment funds have function of gathering the special-purpose tax.Compared with adjustment funds,use land value-added tax to regulate the entry of collectively-owned commercial construction land into the market,it has significant ontology functions and advantages of the rule of law implementation.The Land Value-added Tax Law(Draft for Comment)has been conveniently expanded to collectively-owned commercial construction land into the market,demonstrating the institutional expectation of legislator's to replace the adjustment funds with land value-added tax.But the specific proposed scheme is deeply trapped in the absence of purpose clauses,resulting in unclear taxation orientation;the object rules are closed,leading to insufficient response to relevant tax laws;measurement rules are improper,deviating from the land value-added tax system;and other institutional difficulties.All of these violates tax fairness,deviates from the mechanism and legal principle of land value-added tax,and deviates from the direction of land system reform.In order to formulate a land value-added tax system of collectively-owned commercial construction land into the market that is easy to understand,reasonable in structure,effectiveness and integrity,it is necessary to abide by the dual tax system benchmark of initial circulation and re-circulation,retain the form of purpose clauses and substantially transform existing content.On this basis,the object rules are completed through two paths of internal expansion and external coordination,and the measurement rules compatible with statutory and authorization are reconstructed with the help of tax calculation basis and tax rate,and a special tax system is constructed.