协力抑或扣缴:数字经济平台的税法地位与权义设置  

Assistant or Withholder:The Tax Law Status and Right Setting of Network Economy Platform

作　　者：汤洁茵 Tang Jieyin

机构地区：[1]中国社会科学院大学法学院

出　　处：《法学》2024年第10期163-177,共15页Law Science

摘　　要：网络交易固有的虚拟性、远程性、分散性等特质,导致了税源的高度分散,极大增加了税源管理和税款征收的难度。数字经济平台作为网络交易各方主体之间沟通的桥梁和纽带该以何种身份参与税收征管程序、以何种方式助力税收征管,引发高度关注。就平台代扣代缴模式而言,由于平台与站内经营者之间的法律关系复杂且多元,两者之间未必存在密切的资金往来,亦难以正确或近乎正确地计算其应纳税额,承担扣缴义务势必造成平台过度的财产负担。就平台委托代征模式而言,由享有税收管辖权的税务机关以协议的方式委托平台代征无法回避代扣代缴模式的诸多弊端,委托的“意定性”将使代征与非代征平台形成宽严不等的税收征管环境,从而改变平台之间的市场竞争状况,加上网络交易本身的税收管辖权归属争议意味着“委托者”不明,委托代征因此存在先天的执行障碍。在税收征管活动中,平台应仅为程序推进的“辅助者”,而不能作为直接获取税款的税法执行者。作为网络交易信息的汇聚之地,平台以其掌握的信息助力税收机关查明应税事实,不仅存在期待可能性和便利性,亦不会过度增加其财产负担。It is highly diffcult to collect the taxes due to the taxpayers who are engaged in the business in the network platform for its characteristic of virtuality,long-distance and dispersivity.The network platform provides the virtual bridge and link between the businesses and its customers.More and more expectations are placed on the platform to do help to the tax collection.But it is disputed how the platform participates in the tax levying procedure.It is proposed that the platform should act as the withholding agent,delegated collector or the cooperator of the tax authority as the third party to push the procedure.however,the businesses carry out the trade through the platform with different means.As a consequence,not all the platform can know all the details of the taxable events of the business so that it is not necessarily possible for all the platform to calculate tax amount correctly for all the taxpayers in the form.Moreover,it is not necessarily that the platform can manage or control the money which is owned by the business and can be used to pay taxes it is due.Therefore,it is significantly difficult for most of the platform to act as a withholding agent to withhold taxes due and a high withholding expense shall take place thereby.Actually,the disadvantages of withholding shall happen similarly if the platform directly levy the taxes of the businesses as the agent of the tax authority.The tax authority can choose from some,not all of the platforms which they believe are qualified for delegated collectors to conclude authorized agreement.If so,it is possible that some of the businesses should run away from the platform who will levy the taxes as the agents for there is no tax arbitrage opportunity to other platforms who are the delegated agents.As a result,the market competition order shall be changed.For this reason and also the collecting expense,a qualified platform may reject to be a delegated agent.Besides it,it is not so clear which tax authority shall conclude the agreement as the assignor with the

关 键 词：数字经济平台 代扣代缴 委托代征 协力义务 

分 类 号：D922.22[政治法律—经济法学]