后BEPS时代居民税收管辖权的问题与改革  

The Problem and Reform of Tax Jurisdiction over Residents in the Post BEPS Era

作　　者：王丽华 廖益新[2] Wang Lihua;Liao Yixin(International Law School,Shanghai University of Political Science and Law,Shanghai 201701,China;Law School,Shanghai University of Finance ＆ Economics,Shanghai 200433,China)

机构地区：[1]上海政法学院国际法学院,上海201701 [2]上海财经大学法学院,上海200433

出　　处：《上海财经大学学报（哲学社会科学版）》2018年第4期129-140,共12页Journal of Shanghai University of Finance and Economics

基　　金：国家社科基金重点项目"应对BEPS背景下完善中国反避税法律体系研究"(14AZD)的部分研究成果;上海政法学院高原学科(国际法)资助

摘　　要：在经济全球化和数字经济背景下,建立在传统国际税法理论基础上的以居民税收管辖权为基础的现行国际税收协调模式面临着诸多挑战。晚近国际税法实践中有关居民税收管辖权规则的改革倾向表明,居住国税收管辖权已经不能反映纳税人与征税国之间的更为密切的经济联系,也违背了税收公平原则、量能课税原则、税收中性原则。税基侵蚀与利润转移(BEPS)行动计划的推出和《实施税收协定相关措施以防止税基侵蚀和利润转移(BEPS)的多边公约》的签署(1),为改革居民税收管辖权提供了良机。跨国所得课税权的改革应按照价值创造理论进行,未来加强价值创造理论的研究并在此基础上提出符合发展中国家利益的方案将对国际税收协调规则的重塑产生重要的影响。Tax jurisdiction over residents is a kind of tax principle that is based on the legal facts in the income tax laws of various countries on the basis of the existence of residents or national affiliation between taxpayers and taxable countries. The international principle of tax coordination based on the principle of jurisdiction to tax residents is that one contracting state can exercise jurisdiction to tax residents over a variety of transnational income,and that the other contracting state can tax income derived from its territory according to the condition,scope and degree of a tax treaty. The contracting state of residents bears the treaty obligation to provide duty-free or foreign tax credit relief in order to eliminate international duplication of taxation on transnational income. The coordination mode of international tax above is based on the traditional theory of tax equity,the tax neutrality principle and the benefit burden theory. However,with the development of economic globalization and the emergence of the digital economy,the current coordination mode of international tax based on the traditional theory of tax and the jurisdiction to tax residents are faced with many challenges. First,the traditional connection factor of tax jurisdiction cannot reflect the more frequent and closer economic ties between taxpayers and tax collectors in the new economic environment. Second,as the economic globalization is deepening and the international tax competition is becoming increasingly fierce,the jurisdiction to tax residents is not necessarily in line with the principle of the ability-to-pay of taxation. Third,the coordination mode of international tax based on the general application of tax jurisdiction over residents will aggravate the incentives for taxpayers to avoid tax obligations of a state and abuse the preferential treatment of tax treaties by changing or choosing the identity of residents. In response to these challenges,in the practice of the income tax law and the bilateral tax treaties of the coun

关 键 词：经济全球化和数字经济化 国际税收协调 居民税收管辖权 改革 

分 类 号：F811.4[经济管理—财政学]