留抵退税:定性、释疑与优化

The legal nature,disputes resolution and institutional optimization of reimbursement of uncredited VAT

近年来的留抵退税改革诱发关于其法律定性的争议,一方认为其属于税收优惠,另一方认为其是纳税人行使税收债权的当然表现。从增值税的内在机理出发,后一种观点更为妥帖。实践中,诸多争议均可基于前述定性予以解答:留抵退税款不应具有企业所得税的应税性,税务机关不予征税的做法是合理的,但应解决上位法意涵不明的问题;现实条件下,注销企业无法取得留抵退税款,且无法以留抵税额抵销非增值税欠税,难言合理;纳税人的债权人不能就留抵税额行使代位权。为强化留抵退税的政策功能,应允许纳税人同时适用留抵退税与即征即退等优惠,明确规定留抵退税款属于不征税收入,允许注销企业以留抵税额抵销非增值税欠税,适度放宽适用留抵退税的纳税信用等级门槛。

In recent years,a reform of the reimbursement of uncredited VAT has triggered a dispute about its legal nature.One party believes that it is a tax preference,and the other party believes that it is a natural manifestation of taxpayers’exercise of obligatory right.According to the inherent principle of VAT,the latter view is more appropriate.In practice,many disputes can be settled based on the foregoing qualitative analysis.First,the taxability of the refund payment of uncredited VAT in the enterprise income tax law does not exist.Although it is reasonable for the tax authorities not to levy taxes for policy purposes,the meaning of the superior law should be clarified.Second,under the current circumstances,it is difficult to say it reasonable that the enterprise which is about to be canceled cannot obtain the the refund payment of uncredited VAT,and cannot offset the non-VAT arrears with the tax deduction.Third,the creditor of the taxpayer cannot exercise the right of subrogation with respect to the refund payment of uncredited VAT.In order to strengthen the policy function of the reimbursement of uncredited VAT,taxpayers should be allowed to apply both the reimbursement of uncredited VAT and other preferences,clearly stipulate that refund payment of uncredited VAT belong to non-taxable income,allow taxpayers to offset non VAT arrears with the refund payment of uncredited VAT,and moderately relax the threshold of tax credit rating for the application of reimbursement of uncredited VAT.