税收预约裁定风险及其治理之道——以马钢集团重组案为例

Tax Appointment Ruling Risk and Its Governance——Taking the Reorganization of Ma Steel Group as An Example

为提高税法确定性,减少因税法认识错误而引发的税收争议,预约裁定制度应运而生,并在世界范围内得以广泛运用,尤其是发达国家建立了完备的制度。目前我国并未从法律层面正式确立税收预约裁定制度,但各地税务机关争相尝试,其带来的积极效果不容忽视。然而由于预约裁定的法律性质不明确、参与人的权利义务不明晰、责任机制缺失等原因,引发了预约裁定和税收筹划相混淆、预约裁定的税法确定化功能弱化、消极溢出效应强化等风险。因此,对于预约裁定是否能承担起克服税法不确定性、降低税收筹划风险等重任应保持足够谨慎的态度。为防止预约裁定制度在实践中走向异化,应明确界定其法律性质及效力,厘清其实体要件和程序要件,并完善其责任机制。

In order to improve the certainty of the tax law and reduce the tax disputes caused by the misunderstanding of the tax law,the appointment ruling system has come into being.And it has been used worldwide,especially in developed countries.At present,China has not officially established the appointment ruling system from the legal level.But the tax authorities are bold to give it a try,and the positive effects it brings about cannot be ignored.However,due to the unclear legal nature of the appointment ruling,the unclear rights and obligations of the participants,and the lack of responsibility mechanism,the appointment ruling and tax planning are mixed together,which not only causes the weakening of the taxation determination function of the appointment ruling and triggers the strengthening of the negative spillover effect.Therefore,it is necessary to maintain a cautious attitude that whether the appointment ruling can assume the responsibility of overcoming the uncertainty of tax law and reducing the risk of tax planning.In order to prevent the appointment ruling from becoming alienated in practice,it is vital to clearly define its legal nature and effectiveness.In addition,it is critical to clarify its substantive requirements and procedural requirements.It is also important to improve its responsibility mechanism.